In such cases, the conclusions on the intention of the parties depend on the particular circumstances of the case. That material is not necessarily limited to the initial decision to reconcile or, as in the present case, to write to the Court of Justice. Their intention can crystallize over time and as the parties reconcile to a more precise form, and they bring their lives together, including their financial affairs, so that it becomes incompatible with any other conclusion. In addition to the difficulties faced by lawyers trying to cope with the complexity of Pt VIIIA (and equivalent but not exactly identical provisions for de facto couples in Pt VIIIAB), including retroactive amendments to s 90G (1) and transitional provisions, family lawyers need to know contract law. They must apply contractual principles when designing contracts and consulting with customers on whether and why an agreement can be cancelled. Family lawyers are often out of their comfort zone when it comes to contractual principles. Unfortunately, decisions made by family courts can create further confusion, particularly with regard to coercion, unconscionable influence and unscrupulous behaviour, which address all unfair bargaining powers but are different principles. A paper by the Honourable Justice Paul Brereton of the Supreme Court of New South Wales „Binding or bound to fail? Remedies and rectification of financial agreements“ at the National Conference of the Family Law Section in 2012 were useful in the preparation of this document and are recommended as reading. Once it has been established that a valid BFA exists, it can be cancelled for a number of reasons.
These reasons are set out in Section 90K (married) or Section 90UM (de facto) of the Family Law Act. It may be annulled if it is found that, for the purposes of interpreting the agreement, a court should, as in the context of a commercial agreement, apply an objective test of a reasonable viewer to the construction of an agreement, an agreement the terms of which are so imprecise or ambiguous cannot make sense that the intention of the parties is not identifiable. It is not enough to prove that an agreement is ruthless, that the parties have unequal bargaining power, nor is there any recourse if the circumstances can be described as mere recklessness. However, if an agreement can be said to be clear and manifestly unfair and unfair (within the meaning of paragraph 79), this may be relevant to whether it is incompetent for a party to rely on the agreement. I am not making that kind of observation. In examining directly whether the Family Law Act is confronted with a legal effect, the question whether Pt VIIIA is considered to be the intention to allow the parties to conclude private contracts between themselves in order to conclude with certainty their financial relations or, in certain circumstances, to explicitly crowd out the jurisdiction of the courts. The intention to cancel an agreement may be implicit in the conduct. Cases have generally been decided with respect to s 79A before the dementia of Pt VIIIA….