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Redoing BFA?

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BDJFMG View Drop Down
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Joined: 18/October/2017
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  Quote BDJFMG Quote  Post ReplyReply Direct Link To This Post Topic: Redoing BFA?
    Posted: 18/October/2017 at 14:07
Hi,
In March, 2017, I signed a BFA as a result of separation with my partner of 4+ years. We have one son together.
I signed the BFA under duress due to being bullied into the agreement. The agreement saw me walk away with only my car paid out (currently under finance). He kept the house, furniture and all his super.
I am yet to receive any money 6+months later.
I have recently been made aware that he is intending on selling the house, and the valuation has come back at $100,000+ more than the agreement stated the value.

My question is - do I have the right to overturn this and have a new agreement done?

I have been in contact with my solicitor who I received advice on the BFA initially. He did warn me at the time that it was a very unfair settlement, but given the situation, and the pressures from my ex, I signed it anyway.
My solicitor has gone back to my exes solicitor and he has said no he will be paying as per original agreement.
My solicitor has said that he will organise a cheque to be delivered to him and signed title transfer documents handed over for our property we owned together at this time.

I feel like he is not fighting for me at all. I have 75% custody of our son, cover all his expenses, and receive minimal child support. My ex is on good money and does not offer any additional support.

My solicitor has said the only option is court which I need to have $10-$15k upfront to lodge with them.

Anyone know what my options are? I am struggling financially and this is incredibly stressful.

Thanks

emca01 View Drop Down
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Joined: 20/July/2012
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  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 18/October/2017 at 18:24
You're not gonna like any answers here.... I'm sorry, but you signed the agreement and you had legal advice telling you that you shouldn't have signed. It really is that simple... YUP you could put int $10-15K up front to get this to court.... BUT I"m not sure it is worth it...

BTW - if the BFA is stamped by the court then it would have been reviewed by the clerk of the court... The court has to be satisfied that the agreement was not manifestly unfair. If it was they would not have approved it...

Without all the $$ it is hard to understand why it was approved by the court.. I can only assume that he owned the house prior to meeting you and since it was a short relationship MAYBE you're financial contribution was not substantial and as such he leaves with the assets he brought into the relationship - but I'm only guessing.

BDJFMG View Drop Down
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  Quote BDJFMG Quote  Post ReplyReply Direct Link To This Post Posted: 18/October/2017 at 18:48
I don’t think it was stamped by the court ...

jaazzz View Drop Down
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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 18/October/2017 at 21:38

The courts have no involvement with the creation of a BFA, they neither review it or stamp it, which is precisely why the legislation within the family law act pertaining to BFA's is so clear in that all parties MUST receive independent legal advice on the advantages & disadvantages of signing a BFA,

It appears you were advised it was a bad deal & signed it anyway.

The test for duress is even more difficult to satisfy now then it has been in the past due to a ruling of the full appeal court in late 2016 that states in part that the test for duress is NOT absence or inequality of bargaining power where there was no outcome available to [the wife] that was fair or reasonable, rather, the Full Court found this test was incorrect and stated the correct test is whether there is threatened or actual unlawful conduct... There needed to be a finding that the pressure was illegitimate or unlawful... It further said it is beyond doubt that inequality of bargaining power cannot establish duress

Establishing duress would be very difficult & may well see you ordered to cover the other parties cost if you fail...

There MAY be an avenue to pursue a maintenance order under the act ONLY if the court is satisfied that, when the agreement came into effect, your circumstances were such that, taking into account the terms and effect of the agreement, you were unable to support yourself without an income tested pension, allowance or benefit.... Was that the case?


Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

BDJFMG View Drop Down
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  Quote BDJFMG Quote  Post ReplyReply Direct Link To This Post Posted: 18/October/2017 at 22:37
I’m not sure I understand you fully but when the agreement was signed, I was working part time but also receiving an income tested pension.

The only reason I question the BFA is because 6 months has passed and I am yet to receive any payment at all..

jaazzz View Drop Down
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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 19/October/2017 at 13:32

There's usually a date contained within the BFA that states when it is to come into effect, or actions that need to take place before it takes effect...

If on that date, taking into account what you will receive from the terms of the BFA, you are UNABLE to support yourself WITHOUT a means tested pension, allowance or benefit, then the court reserves the right to consider a maintenance order regardless of the BFA..

You would still have to make an application for such with the court & provide an affidavit setting out your case & proving your income.

All that said, if you have concerns that the terms of your BFA are not being adhered to & or have some doubt about your solicitors actions, I suggest you take the BFA for an independent assessment by another solicitor

Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

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