AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
of the de facto relationship, during the de facto relationship, or after the termination of the de facto relationship. They are subject to the same style statutory regime that applies to BFAs for married persons. They are binding if, and only if, the statutory requirements under the Family Law Act are met unless a court finds it would be unjust and inequitable not to enforce the agree - ment and notwithstanding its technical failings. BFAs between de facto couples are also liable to challenge and to be set aside on similar grounds that apply to married persons. Again, submis - sions based on grounds such as undue influ - ence, unconscionable conduct, duress, fraud, or misrepresentation may be raised. Is There an Obligation to Make Disclosure Prior to Entering into a BFA? Although there is no specific statutory or rule- based requirement that a party must give full and frank disclosure before a BFA is made, best practice of legal practitioners and the general attitude of the judiciary is to the effect that dis - closure is an integral part of the making of any such agreement, and failure to give proper dis - closure renders any BFA liable to challenge as either not binding or that it be set aside. By way of example, case law recognises that in order for legal practitioners to fulfil their obliga - tions to give advice to a client about the nature and effect of the BFA and its advantages and disadvantages, they can only fulfil that legal duty if the lawyer is cognisant of the assets and liabil - ity position of each party. In the absence of that knowledge, it is difficult to see how a lawyer can provide advice in the terms required by the Fam - ily Law Act before their client enters into such a BFA. Further, it is difficult to see how a lawyer can provide a statement of independent legal
advice to the client if they do not have that infor - mation upon which their advice can be based. The absence of disclosure material also makes submissions that a BFA should later be set aside on the basis of misrepresentation or fraud more common. Will an Australian Court Recognise a Foreign Prenuptial or Postnuptial Agreement? The jurisdiction of an Australian court to make orders for property settlement and/or spousal maintenance will only be ousted by a BFA that meets the requirements under the Australian statute (ie, the Family Law Act). Australian courts will not regard their jurisdiction as being ousted by the existence of a prenuptial agreement made in a foreign jurisdiction, notwithstanding that such an agreement may be perfectly valid and enforceable in that foreign country. The existence of a foreign prenuptial agreement – particularly one that contains a forum clause or choice of law clause in favour of that foreign jurisdiction – may, however, be a powerful rea - son why an Australian court might stay its pro - ceedings in favour of the foreign jurisdiction. Jurisdictional Requirements for the Making of BFAs Although there are no specific jurisdiction - al requirements that apply to BFAs made as between parties to a marriage or intended mar - riage, there are important jurisdictional require - ments that apply to BFAs for parties to a de facto relationship. In overly simplistic terms, foreign persons who are cohabiting and not residing in Australia could not enter into or make a BFA that is valid and binding under Australian law, unless and until they are both parties who are present in and ordinarily resident in Australia.
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