LOVE blossomed between Jenny and Dave, a 30-something couple and before long they were talking about marriage.

They made the pragmatic decision to enter into a Binding Financial Agreement (BFA), sometimes referred to as a “Prenup”, before tying the knot.

Jenny and Dave, meticulously drafted the agreement, reflecting their mutual respect and understanding of each other’s financial independence.

They both wanted to ensure that their own hard-earned assets were protected and that any future disputes could be resolved amicably.

They each obtained separate legal advice before the agreement was finalised and executed.

Shortly after their marriage, Jenny became pregnant with twins.

The couple purchased a family home and for several more years things were good, albeit that Jenny was busy with twins most of the time.

Sadly, their marriage encountered fundamental difficulties, leading to an unpleasant separation.

They both sought legal advice, as Dave intended to keep all “his” property and move interstate with his new partner.

He expected that Jenny would take-on the fulltime care of the kids and only retain “her” property, as per the terms of the prenup.

In Court, Jenny argued that the prenup should be set aside as it did not account for the financial needs of their children nor her reduced earning capacity.

Dave sought to enforce the terms of the prenup.

The Court scrutinised the parties’ circumstances and in particular, the care, welfare and development of the children given the new family dynamics.

The Court determined that although the BFA may have been equitable at the time of signing, it was no longer just and equitable on the basis that Jenny was likely to suffer hardship if the agreement was not set aside.

Ultimately, the prenup was set aside, allowing Jenny to seek a fair division of assets and appropriate child support.

The outcome demonstrates the importance of ensuring that BFAs are flexible and adaptable to significant life events, to withstand legal scrutiny.

Thank you to Anthony Fogarty for his assistance with this column.

Email Manny Wood, principal solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This fictional column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor