A binding financial agreement (‘BFA’) is a tool commonly utilised by family lawyers that formalises how a couple’s property, assets, superannuation, and liabilities will be divided in the event of the breakdown of the relationship. BFA’s are a private contract that, once entered into, results in parties giving up their rights under the Family Court Act 1997 (WA) and Family Law Act 1975 (Cth).
We have seen a rise in BFA’s including clauses that attempt to contract out of the Family Provision Act 1972 (WA) (‘FPA’) when one party dies. However, case law suggests that the FPA cannot be ‘contracted out of’. This highlights the dichotomy between an individual’s moral obligation to provide for their family and contractual freedom.
Section 7(1)(b) recognises that divorce or separation will not necessarily end the moral obligation to provide for a former spouse. In light of the policy to promote the finality of settlements of property disputes by orders made in the Family Court, the circumstances in which a former spouse can make a claim for further provision under the FPA need to be ‘exceptional’. As Handley JA in Mulcahy v Weldon states:
It is clearly established that factors which may warrant the making of an application by a former wife include any factors which may have prevented the making of an order for property settlement under the Family Law Act, such as the premature death of the husband… Another category sometimes encountered is where the former wife continues to make contributions to the welfare of her former husband after dissolution of the marriage.
Part VIIIA of the Family Law Act 1975 (Cth) establishes the legislative provisions for BFAs for married couples, Part 5A Division 3 of the Family Court Act 1997 (WA) for de facto couples in Western Australia and Part VIIIAB Division 4 of the Family Law Act 1975 (Cth) for de facto couples in other States and Territories. Changes made to the Family Court Act 1997 (WA) in 2002 mean Financial Agreements can be implemented by Western Australian couples before, during or after marriage or a de facto relationship.
In a nutshell, BFAs uphold an individual’s right to forgo the benefit conferred on them by law. This is reflected in the maxim quilibet potest renunciare juri pro se introducto (anyone may renounce a law introduced for their own benefit).
Historically Courts in England and Australia regarded any agreement which sought to exclude their jurisdiction to make an order for the maintenance of a spouse as being void and contrary to public policy.
This was because the provision of maintenance on divorce was seen to contain a social obligation to protect women from being dependant on the state or charity once divorced. However due to the volume of contested property matters, family law progressed and recognised that BFAs would, in theory, reduce the volume of these claims.
For a BFA to be binding there are certain requirements that need to be met. If these items are not met, then the agreement can be voided or set aside. The parties must both obtain independent legal advice and have a solicitor draft and sign the document to avoid the agreement being set aside.
Additionally, BFAs should also be reviewed about every two years or after a significant event in the lives of the parties, such as the birth of a child or one party receiving an inheritance.
Under s90H of the Family Law Act 1975 (Cth), a BFA continues to operate despite the death of a party to the agreement and is binding on the legal personal representative of the deceased party. Note that a BFA does not come into effect if one or both parties die without a separation, and it would instead be considered ‘void’. This is because only separation or divorce triggers the operation of a BFA, not death.
Contracting out generally
The law of succession intersects with the law of property and family law. Professor Plunkett in his text A Concise History of the Common Law described succession law as ‘an attempt to express the family in terms of property’. Accordingly, as society’s understanding of what constitutes family, property, and proper arrangements for the transfer of property on death develops, succession law has evolved to recognise these changing concepts and societal expectations.
Such features in modern legislation involve a progressive expansion of the Court’s jurisdiction to interfere with an individual’s private arrangements for the disposition of property upon their death.
Contracting out of the FPA
Current case law suggests that a person cannot contract out of their right to apply for further provision under the FPA unless the legislation provides to the contrary. The principal case commonly cited in support of this position is the High Court case of Lieberman v Morris (1994) 69 CLR 69.
- Ms Chmelnitzki was Mr Morris’ second wife much later in life (he was 78 years old and she was 42)
- Prior to their marriage, they executed a deed which included a mutual agreement that she would not make, institute or prosecute a claim against Mr Morris’ estate under the Testator’s Family Maintenance and Guardianship of Infants Act 1916-1938 (NSW) which is now NSW’s equivalent to the FPA, the Succession Act 2006 (NSW)
- Mr Morris stated that if the parties were not separated or divorced at the date of his death, he would gift Ms Chmelnitzki £500
- The parties married in 1940 and Mr Morris died 2 years later
- Mr Morris’ will reflected the £500 specific gift and all the household furniture and effects. He further directed his executor to pay her £3 per week until she dies or remarries
- Ms Chmelnitzki made a family provision claim
- The Court considered whether the deed they executed in 1940 prevented Ms Chmelnitzki from making a claim
The majority of the High Court held that the inability to contract out of the Act was grounded in public policy. This is because the object of family provision legislation is to provide for the maintenance and support of persons who might otherwise become a charge on the state. It was considered that such a covenant cannot deprive a court of the discretionary jurisdiction conferred upon it by legislation.
This public policy consideration is now widely considered the main reason why a person cannot contract out of the FPA, and was characterised by the High Court in Smith v Smith as being contrary to public policy unless the statute provides otherwise. In the more recent High Court decision in Vigolo v Bostin, Gleeson CJ stated:
This Court has also relied upon a dominant legislative purpose of enforcing moral duties as a reason for refusing to give effect to an attempt to contact out of making a claim.
Singer v Berghouse  HCA 40
The principles in Lieberman were applied in the seminal case of Singer v Berghouse.
- The appellant Bernice Singer was the widow of the deceased Lionel Singer
- Under the terms of the Deceased’s will, he gave the whole of his estate upon trust for sale with the proceeds from the sale going to various trusts
- Firstly, the proceeds from the property acquired before the Deceased’s marriage went to his son
- Secondly, the proceeds of the property acquired after the marriage would go to the appellant for life and thereafter to his son
- The will was intended to give effect to an ante-nuptial agreement entered into between the parties, whereby both parties agreed not to make any claim against the other’s estate as they wished for their respective children or other members of their families to inherit their estates
- Clause 3 of the will of the Deceased provided that:
“I direct my Executor to bind himself to the terms of a Deed of Ante Nuptial Settlement … made between myself and my dear wife and I further declare I have no further interest in the ante nuptial estate of my dear wife”
- The Deceased’s will also provided that:
“Bernice has not and will not at any time in the future have and/or make any claim under the provisions of any legislation… with respect to provisions for entitlement to property arising out of the marriage relationship, its subsistence or beyond and/or arising out of testamentary capacity or intestacy”
In Singer v Berghouse the High Court considered how much, if any, weight should be given to an agreement that included a covenant not to challenge each other’s wills. Although the High Court rejected the widow’s claim, they held that although the agreement was not binding, it has evidential value in that it showed what the parties thought it was fair at the time and that the widow did not expect a more affluent life than before marrying the deceased.
Daebritz v Gandy & Ors  WASC 45
Daebritz is one of the few WA cases that consider contracting out of the FPA.
- The plaintiff Bethwyn Daebritz is the de facto wife of the deceased Alexander Gandy
- The plaintiff and the three executors entered into negotiations after the Deceased’s death about a payment for $100,000.00 which the Deceased promised the plaintiff during his lifetime
- The solicitors for the executors prepared a deed of settlement
- The parties subsequently executed the deed and the Plaintiff received $100,000.00
- The deed recites that the parties “agree that they constitute a full and final settlement of all matters concerning the estate of the deceased”
- The defendants say that this release is a complete bar to the plaintiff bringing any claim for a better provision from the estate
The matter was actually an application for leave to bring an FPA claim out of time. However, it was necessary for Master Bredmeyer to consider whether the applicant was able to bring a claim given that they executed a deed purporting to prevent claims on the estate. An application for leave is necessary for the Court to hear an application made outside the six-month time frame set out in s 7(a) of the FPA.
Master Bredmeyer considered that the Lieberman decision was binding on him and could not diverge from it. Master held that while the deed was not binding, it was of evidential value and was considered as such. The position in WA can be summarised as follows: the release of rights under the FPA is not binding but is a statement of the parties’ intentions. An interesting example which highlights how the court uses BFAs as evidence of the parties intentions is Kozak v Matthews.
Kozak v Matthews  QCA 296
- Appeal from the Supreme Court of Queensland matter of Kozak v Matthews & Anor  QSC 203
- In the first instance Helman J held that the BFA was not binding but ultimately dismissed the claim on the basis that proper and adequate provision was made for the applicant
- Peter Kozak was a farm labourer who lived in a caravan and was in a de facto relationship with the very wealthy Jacqueline Messer
- Kozak and Messer entered a BFA that attempted to prevent the parties from claiming against each other’s estates
- At the time the agreement was entered into, Messer had terminal cancer and was not expected to live more than a few years
- After Messer’s death, Kozak made an FPA claim against her estate claiming that he needs a distribution large enough to buy himself a house
The Court firstly considered whether it is satisfied that adequate provision was made from the estate for the proper maintenance and support of the appellant. When making this assessment, the Court considered the appellant’s financial position, size and nature of the deceased’s estate, the totality of the relationship between the deceased and other people with a legitimate claim on her bounty. Wilson J agreed with the primary judge in his assessment of the jurisdictional questions being that:
The question of the adequacy, or inadequacy, of the provision made is not to be decided in a vacuum, or by looking simply to the question whether the [appellant] has enough upon which to survive or live comfortably.
On appeal, Jerrard J and Cullinane J agreed with the judgment of Wilson J. Her Honour considered all relevant circumstances, which included any promise the deceased made to the appellant, the circumstances in which it was made, and changes in the arrangements between the parties after it was made. Furthermore, as in all FPA claims the age, capacities, means and competing claims of the other beneficiaries is taken into account and weighed against all other relevant factors.
Wilson J considered all of those factors, including the deed executed in March 2002, the modest financial circumstances and family commitments of the Deceased’s five children. Counsel for the appellant argued that the appellant had not read the deed before he executed it and did not receive any legal advice about it. However, her Honour disregarded these matters as the appellant freely admitted that he knew what the effect of the deed was. The Court unanimously dismissed the claim on the basis that proper and adequate provision was provided to the appellant.
The Court ultimately held that the deed was relevant to the totality of the relationship between the appellant and the deceased, because at least after its execution, the relationship between the appellant and the deceased proceeded on the assumption, reinforced by assurances by the appellant, that its terms would be honoured.
To re-iterate, in WA there is no provision under the FPA which facilitates parties to release their rights. Accordingly, all covenants in BFAs that attempt to circumvent the jurisdiction of the Supreme Court in FPA matters are void. However, in NSW, persons can apply under s 95 of the Succession Act 2006 (NSW) to the Supreme Court to obtain an order approving the clause in the BFA contracting out of the FPA. This provision allows for persons to release their right to apply for an FPA order on the approval of the court.
When considering approving agreements that contract out of the FPA, the Court considers:
- Whether it is entered into for “valuable consideration” rather than “peppercorn consideration”;
- Whether the release was to the releasing persons’ advantage financially or otherwise;
- Whether it was prudent for the releasing person to make the release;
- Whether the provisions of the release were fair and reasonable at the time; and
- Whether the releasing party had received independent advice and given due consideration to the advice.
If the court finds that the release was to the releasing party’s advantage, then that person will be prevented from bringing an FPA claim. The releasing party basically needs to be paid out. This provision can also be used in other circumstances, such as parents who have made a significant gift to their children during their lifetime and the parent believes that they do not need to give anything further to that child upon their death. It is worth noting that an order of the Supreme Court of NSW is not binding on courts in other states.
The difference between avoidance by other inter vivos transactions and contracts
However, it must be noted that there are other ways for avoiding the FPA, such as transferring property into a trust, transferring property to be held in joint tenancy, and disposing of property prior to death. These inter vivos transactions seem to be acceptable because it is for a proper purpose of transferring an asset as opposed to deliberately trying to avoid the jurisdiction of the Court.
Ultimately, if there are no assets in the estate then a FPA claim is not possible as there are no anti-avoidance or clawback measures in WA. Failure to implement anti-avoidance or clawback measures ultimately leaves eligible persons who the FPA seeks to protect without any recourse.
In summary, a contractual clause that has the intended effect of preventing a party from exercising their rights under the FPA is void and unenforceable. This likely includes contracts that purport to waive accrued rights, BFAs, and deeds of forbearance. This is due to the purpose of the FPA legislation being grounded in social policy designed to have a remedial effect. As such, individuals cannot deprive the Court of its jurisdiction through private agreements or deeds.
Although such agreements or deeds cannot be a bar to proceedings, they are often used by the court as evidence of the party’s intentions when assessing whether:
- the former spouse has an obligation to provide for their former spouse, and if so;
- whether proper and adequate provision was made for an applicant; and if not,
- what proper and adequate provision would be.
 Justice Geoff Lindsay, ‘The Family Provision Jurisdiction: An Outline of Themes and Practical Considerations’ (Sydney Law School, 26 May 2021) at .
 Lindsay (n 1) at .
 Lindsay (n 1) at .
 Dijkhuijs v Barclay (1988) 13 NSWLR 639; 92 FLR 67; 12 Fam LR 367.
 Ibid, at 651.
  NSWSC 474, at .
 Martin Bartfeld, ‘Financial Agreements: Just a Little Bit Binding’ (2012) 22(3) Australian Family Lawyer 35, 37.
 Theodore Plunkett, A Concise History of the Common Law (Liberty Fund, 5th ed, 1956), 711, 743 and 746.
 Lieberman v Morris (1994) 69 CLR 69.
 (1986) 161 CLR 217.
 (2005) 221 CLR 191.
 Ibid, Gleeson CJ at -.
 Kozak v Matthews  QCA 296 at .
 Succession Act 2006 (NSW), s95.