Financial agreements – that the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’…

In Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) dismissed with costs the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the court setting it aside for unconscionability and undue influence.

The agreement was signed a few months before the wife was granted a spouse visa. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor.

The Full Court said (from [31]):

“It is the husband’s contention that … in circumstances where the wife’s solicitor advised her against signing the BFA …, the wife acted on her own free will. (…)

[35] (…) Given the 30-minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA.

[36] (…) [T]hat the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation:Thorne v Kennedy [2021] FamCAFC 9] (…)

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[64] … [I]t is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests (…).

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).