At last some good news for Financial Agreements

We are now starting to see some decisions being handed down by the Court that uphold the validity of financial agreements.

The recent January 2015 case of Delahey and Garra-Marsh is the latest example. There the Court refused to set aside a financial agreement relating to spousal maintenance and a binding child support agreement.

The financial agreement

This case concerned allegations by the Applicant, Ms Delahey, that she signed the agreement under duress.  It was alleged that she was the victim of domestic violence and fraudulent and unconscionable conduct by Mr Garra-Marsh. In making these allegations Ms Delahey had to show that at the time of signing the agreement she was under some sort of special disadvantage and that Mr Garra-Marsh, being aware of this, took advantage of the opportunity that this presented to him.

Ms Delahey and Mr Garra-Marsh were married for 2 years and there is one child who was 8 years old at the date of the decision. Since separation in 2008, Mr Garra-Marsh has lived in the United Kingdom.

Ms Delahey alleged she left the marriage as a victim of domestic violence and her action in signing the agreement was that of someone under severe threat which in her case was financial hardship. The Court did not accept this claim.

Ms Delahey also alleged that Mr Garra-Marsh did not fully disclose his financial affairs. This included a business dealing which was a vehicle for concealing assets of significant value and sale of a property. The Court accepted Mr Garra-Marsh’s explanation and did not accept this claim by Ms Delahey.

Ms Delahey alleged that Mr Garra-Marsh was deceitful in not disclosing his new relationship and later marriage and the fact that his new partner was pregnant. The Court accepted his explanation and held it was not material and so dismissed this claim by Ms Delahey.

The binding child support agreement

In addition to the claims of duress and unconscionable conduct by Mr Garra-Marsh, Ms Delahey also alleged there were exceptional circumstances that warrant setting the child support agreement aside. The Court held that `exceptional circumstances’ contained in S136 (2)(s) of the Child Support Assessment Act required to set a child support agreement aside sets higher threshold than the `material change in circumstances’ contained in S90K(1)(d) of the Family Law Act to set a financial agreement aside.

On hearing Ms Delahey’s evidence, the Court found that she failed to satisfy even the material change in circumstances requirement and therefore her application to set the child support agreement aside failed.

Should you require any further information on this case or information contained in this article, please contact the team at Damien Greer Lawyers.

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