A High Court ruling to set aside a prenuptial agreement does not change the importance of financial agreements in asset protection, according to leading legal firm Creevey Russell Lawyers.
Creevey Russell Partner Clare Creevey said the High Court judgment to set aside a pre-nup between the now deceased elderly millionaire property developer and his younger European bride highlights the need to properly finalise financial agreements early.
The High Court last week unanimously set aside the prenuptial agreement, which the wife had signed against her own legal advice, and another financial agreement signed after the wedding.
The decision overturned a Full Court of the Family Court decision which last year ruled the financial agreements were legally binding. The High Court ruling, which said the wife was powerless and had no choice but to sign, will result in another court deciding how the property pool should be divided.
Ms Creevey said: “This decision doesn’t change the importance of financial agreements in asset protection. Agreements between parties who have acted out of their own free will cannot be set aside.
“This judgment simply highlights the importance of finalising and signing the agreement early on, and in circumstances where the other party is not at a special disadvantage or is unable to exercise their own free will.”
The couple in the prenup had met over the internet and about 11 days before their wedding the Australian developer, who had assets between $18 million and $24 million, insisted his fiancée sign a prenup or the wedding would not go ahead. The agreement said if the couple separated within the first three years of marriage the woman would receive nothing.
Ms Creevey said: “A second agreement was signed in the months after they married, presumably because the husband’s lawyers were concerned the first agreement could be vulnerable to being set aside in the future because it was signed so close to the wedding.”
The parties separated four years later and the wife filed a court application to make a declaration that the agreement was not binding. In that application she also sought an order that she receive $1.1 million from the husband plus $104,000 in spousal maintenance. The husband died in 2014 during the first proceedings and the executors of his estate took over the proceedings on his behalf.
The matter will now proceed to the Federal Circuit Court where the wife’s application for property adjustment and spousal maintenance will be determined.
For further details do not hesitate to contact Clare Creevey or Jacinta Norris on (07) 3009 6555