Bullet-proof financial agreements—rare as hens’ teeth? Looking at financial agreements after Thorne v Kennedy

Not all financial agreements under the Family Law Act 1975 (FLA) are drafted equally. While a completely challenge-proof financial agreement is an urban legend, there are things you can do to increase their effectiveness. Understanding the fundamentals that are required is key. Keeping up-to-date with the latest case law is arguably even more vital than in other aspects of family law. When and why are financial agreements found not to be binding or set aside? The High Court delivered its judgment in Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807 on 8 November 2017, changing the law, yet again. There is probably no other aspect of family law which has been subject to such a barrage of legislative changes, prospective legislative changes and contradictory judgments.

This paper covers:

1. What needs to go into a financial agreement to make it valid?
2. Duress, undue influence, unconscionability and Thorne v Kennedy
3. Disclosure
4. Power of the court to declare financial agreements binding
5. Dealing with hybrid agreements
6. Contract law and financial agreements – how do they interact?
7. Equitable and common law right to performance of contract
8. Interpretation of financial agreements – Uncertainty and incompleteness
9. Material change in circumstances in relation to children
10. Checklist