Even if parties have entered into a pre-separation agreement, it is possible under certain circumstances as provided for instance by section 90K(1) of the Family Law Act 1975, for a financial agreement to be set aside.
What happens if a Pre-Separation Financial Agreement is set aside?
If the agreement is set aside, then either party would be able to make an application for division of property under section 79 or section 90SM(1) of the Act where the agreement no longer bars either party from commencing proceedings. In that case, the financial agreement will not prevent one party from making a claim upon the property of the other party.
Set aside applications are a complex area of law and Meredith Lawyers are proud to have successfully defended a set aside application in the 2017 Family Court Decision in Sydney Kapsalis & Kapsalis  FamCA 89.
In this case, the wife sought to set aside a financial agreement entered by the parties prior to marriage. The wife was unable to successfully rely on section 90K(1)(a), 90K(1)(d) or 90K(1)(e), and the application failed. Consequently, she was unable to make any claim under section 79 on our client’s estate.
A meeting with an experienced family lawyer is critical if your former partner is considering making an application to set aside your financial agreement. Our solicitors can take you through our considerable experience in this area and advise you on the merits of any set aside application.
Alternatively, if you believe a financial agreement should not have been entered into for any reason, and you do not believe you should be bound by the agreement and you wish for it to be set aside, then we can equally advise you as to your prospects of setting aside the agreement.
Our firm is experienced in this area with a track record of success. It is our mission to provide you with enlightening and helpful advice on these issues.