Can a Binding Financial Agreement ('BFA') be Set Aside by a Court?
The Family Court will only set aside a BFA in limited circumstances. The court may make an order setting aside the agreement if the Court is satisfied that:
- There has been a failure to disclose relevant matters such as an asset, interest in a trust or a real estate valuation;
- The agreement was obtained by fraud or duress;
- The agreement is uncertain or incomplete or has been obtained by undue influence, misrepresentations, mistake, fraud or other contractual irregularities;
- A party to the agreement entered into the agreement:
a. for the purpose of defrauding or defeating a creditor; or
b. with reckless disregard of the interest of a creditor.
- the agreement is void, voidable or unenforceable;
- in the circumstances that have arisen since the agreement was made it is impractical for the agreement or part of the agreement to be carried out;
- since the making of the agreement a material change in circumstances has occurred (being circumstances related to the care, welfare and development of a child of the de facto relationship) and as a result of the change of the child a party to the agreement will suffer hardship if the Court does not set the agreement aside.
- in respect of the making of a financial agreement or former financial agreement, a party to the agreement engaged in conduct that was, in all circumstances, unconscionable.
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