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Key decisions

  • Piper & Mueller [2015] FamCAFC 241
  • Saintclaire [2015] FamCAFC 245
  • Chancellor & McCoy [2016] FCCA 53
  • Sandford & Cobb [2016] FamCA 11

Financial agreements – Full Court holds that a s 90UC agreement is not invalid by also being under s 90B

In Piper & Mueller [2015] FamCAFC 241 (18 December 2015) the Full Court (Ryan, Murphy & Aldridge JJ) dismissed with costs Mr Piper’s appeal against Judge Willis’ decision to hold an agreement made under both s 90UC and s 90B to be binding under s 90UJ(1A). Ryan & Aldridge JJ (with whom on this issue Murphy J in separate reasons agreed) said (at [29]-[31]):

‘In our view, it is unremarkable for a document to contain more than one agreement. An obvious example is a document which contains, as an adjunct to a primary agreement, a guarantee. There is no necessary conflict between people being … in a de facto relationship and also contemplating marriage. … Subject … to any provisions of the Act, there is no reason why a single agreement could not deal with the distribution of … assets on the breakdown of their de facto relationship or the ending of their subsequent marriage. However, it is … clear that financial agreements under Parts VIIIA and VIIIAB are quite distinct.’

The Court said (at [33]-[34]) that ‘the Part VIIIA exclusion contained in s 90B(1)(aa) [where another agreement is in force under that Part] does not preclude a Part VIIIAB financial agreement and vice versa.

This is a powerful indication that the two … agreements can exist concurrently and in the one document … [a] notion … reinforced by the fact that only one of these financial agreements could have operative effect at any one time’.

The Court continued (at [37]):

‘As to the submission that different types of advice would need to be given so as to ensure the validity of the agreements, it is not readily apparent to us that this would be so.’

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