Binding Financial Agreement: What happens when there is duress?

BINDING FINANCIAL AGREEMENT: WHERE THE WIFE WAS PRESSURED TO SIGN THE BFA

Blackmore & Webber [2009] FMCAFam 154

In this case, Mr Blackmore produced a BFA for Ms Webber to sign five days before the couple were to be married. Ms Webber was due to return home to Thailand shortly after the wedding in circumstances where she was faced with the real risk of not being able to remain in Australia as her visa was about to expire and her family in Thailand expected her to return home married. Mr Blackmore said he would not marry Ms Webber or sponsor her fiancé visa unless she agreed to the signing of the Agreement.

An Agreement may be set aside under s 90K(1)(b) if it was signed under duress. A person who is subject to duress knows what he or she is doing and chooses to submit to demand or pressure rather than take an alternative course of action. The courts must consider whether that pressure is illegitimate. It may be so if it consists of unlawful threats or amount to unconscionable conduct.

In requiring Ms Webber to sign the Agreement in the circumstances, the pressure placed on her was illegitimate. She was placed in a position where she had little to no choice but to sign the Agreement. Therefore, the Court found that the BFA was signed under duress and ought to be set aside.

Lesson

A person should never be pressured into signing a BFA. If that pressure consists of unlawful threats or conduct that goes against good conscience, the Agreement may be set aside.

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