Defending a challenge to a binding financial agreement
BFAs can be set aside on limited grounds including fraud, unconscionable conduct, duress, material change, or failure to meet statutory formalities. The party seeking to uphold the BFA should focus on strict compliance with s 90G or s 90UJ and on evidencing independent legal advice.
This is an 8-step workflow for defending a set-aside application brought against a binding financial agreement (BFA) under Part VIIIA or Part VIIIAB of the Family Law Act.
Before you start
- A copy of the executed BFA and solicitor's certificates
- Disclosure file from the original negotiation
- Details of assets disclosed at signing and current pool
- Contact details for the original drafting solicitors (for each party)
The workflow
Review the BFA for formal validity
Confirm the BFA satisfies the s 90G or s 90UJ formal requirements, particularly that both parties received independent legal advice and that statements are attached.
Map the set-aside grounds being pressed
Identify which of the s 90K or s 90UM grounds the applicant relies on. Prepare a grounds-by-grounds response including evidentiary needs.
Gather original file evidence
Obtain the original file from the drafting solicitor including advice letters, file notes, and client communications. Address privilege waiver carefully.
Draft the Response
Draft the Response to the Initiating Application denying the set-aside grounds. Plead any affirmative defences including estoppel, laches, and ratification.
Prepare disclosure and subpoenas
Complete disclosure under r 6.06. Issue subpoenas to banks, financial advisers, and drafting solicitors to establish the applicant's knowledge at the time of signing.
Brief expert evidence if needed
If the set-aside turns on asset values at the time of signing, brief a forensic accountant. If unconscionability is pressed, consider briefing a psychiatrist on the applicant's capacity.
Prepare for mediation and settlement
BFA disputes are often resolved at mediation. Prepare a settlement offer that preserves the commercial outcome of the BFA while addressing the applicant's core complaint.
Run the final hearing
If the matter does not resolve, prepare for a contested final hearing. Focus on contemporaneous evidence of advice received, asset disclosure, and the parties' respective positions.
What you will have at the end
Either the BFA upheld as binding, or the court sets it aside and the property pool is then determined under s 79 or s 90SM of the Family Law Act.
Common issues
- Latent s 90G non-compliance where solicitor statements are missing a required element
- Evidence gaps on the quality of independent legal advice given at signing
- Underestimating the Thorne v Kennedy unconscionability test post-2017
- Material change grounds where children have been born since signing
- Costs consequences where the defending party's conduct prolonged the dispute
Run this workflow on a real matter
Quillio cross-checks BFAs against s 90G / s 90UJ formalities, maps the Thorne v Kennedy factors, and drafts Responses to set-aside applications from your file notes. See /practice-areas/family-lawyers.
This workflow is a general guide. BFA defences are fact-specific and outcomes turn on the quality of contemporaneous file material.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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