On what basis can I set aside a Financial Agreement?

Parties may reach an agreement in financial matters and sign documents that are filed in court and orders made to reflect the arrangements.  Alternatively the parties may sign a Financial Agreement that is not filed in court but instead certified by independent lawyers acting for each of the parties.

Beware:

The Family Law Act makes provision for the setting aside of a Financial Agreement if the requirements of the legislation have not been correctly followed.  It is so important that these agreements are drawn up very carefully and proper advice is provided by each of the lawyer.

Take this situation:

• Husband and wife emigrate to Australia from Lebanon and some years later decide to separate
• Wife consults a lawyer with the assistance of her family
• Wife does not speak English only Arabic
• Wife’s lawyer only speaks English and definitely not Arabic
• Wife’s lawyer sees the wife in conference but always in the company of a member of the wife’s family who is fluent in English and Arabic and acts as an interpreter
• Husband and wife reach an arrangement as to financial issues as to property and spouse maintenance
• Husband’s solicitor prepares a Financial Agreement for the parties to sign
• Wife signs the Financial Agreement however no special drafting is included in the Agreement to indicate that the document had been read over to the wife by a translator fluent in English and then translated to her in Arabic
• Some months later the wife is not happy with the property settlement set out in the Financial Agreement and seeks the assistance of a lawyer who speaks her language
• The wife is advised by her lawyer to commence proceedings in the Federal Circuit Court to set aside the Financial Agreement on the basis that she had not understood the legal advice

What is the decision of the court?

The Financial Agreement in such a case may be set aside if the Arabic translator does not explain the Financial Agreement in the presence of the wife’s lawyer.