Grounds to set aside BFAs

There are a number of grounds upon which the Court can set aside BFAs. These include:

1. The technical requirements have not been met – both parties must receive independent legal advice prior to entering into the Agreement, receive a signed statement confirming legal advice was given, sign the Agreement and exchange a copy of that signed statement with the other party.
2. The Agreement is void, voidable or unenforceable. If an Agreement is void then it had no effect from the beginning and can be due to mistake, uncertainty and incompleteness. A voidable Agreement is can be set aside at the election of one of the parties. An Agreement will be unenforceable if there is some technical or procedural impediment to the enforcement. The circumstances that may lead to the Agreement being set aside as void, voidable or unenforceable include mistake, undue influence, duress, uncertainty, incompleteness or failure to comply with formal requirements set out in the Family Law Act.
3. The Agreement has been obtained by fraud (including failure to disclose relevant information). For example, if you or your ex-partner do not provide full financial disclosure and it is subsequently found that the actual values of some of you or your ex-partner’s assets are significantly different.
4. A person entered into the Agreement for the purpose (or a purpose that included the purpose) of defrauding (or in reckless disregard of the interests of) another person who is a party to a de facto relationship. For example, if you and/or your ex-partner were using the Agreement as an instrument to prevent a third-party de facto partner from making a de facto property claim, and the Court becomes aware of that deceit, then it may exercise its powers to set aside the Agreement notwithstanding that both parties may not have been a party to that deceit;
5. A party to the Agreement engaged in conduct that was unconscionable. This refers to cases in which a party makes unconscientious use of his/her superior position or bargaining power to the detriment of the party who suffers from some special disability or is placed in a special situation of disadvantage.
6. The agreement covers a superannuation interest that is unsplittable.
7. A payment flag is operating on a superannuation interest that is covered by the agreement.