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:

  1. There has been a failure to disclose relevant matters such as an asset, interest in a trust or a real estate valuation;
  2. The agreement was obtained by fraud or duress;
  3. The agreement is uncertain or incomplete or has been obtained by undue influence, misrepresentations, mistake, fraud or other contractual irregularities;
  4. 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.

  5. the agreement is void, voidable or unenforceable;
  6. 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;
  7. 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.
  8. 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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