Case Review: Zella & Canino [2022] FedCFamC1F 314
- Surge Legal
- 1 minute ago
- 3 min read
The decision in Zella & Canino [2022] FedCFamC1F 314 highlights the strict standards required to maintain a Financial Agreement in Australia. Justice Schonell set aside a 15-year-old agreement, demonstrating the technical and behavioral pitfalls that can render such documents unenforceable.
Background
The parties met in 2006 and became engaged in mid-2007. Less than two weeks before their wedding, the husband presented the wife with a draft Financial Agreement. At that time, the husband’s real estate assets and shares were valued at approximately $3.7 million. The agreement provided that the wife would receive no adjustive payment and each party would retain their pre-marriage property.
The wife contended that the husband claimed they could not marry unless she signed the agreement and that the Husband told her, among other things, the following words when handing her the proposed financial Agreement:
“Inside is a financial agreement to protect my assets. I don’t want the same thing to happen again as happened with [Ms O] because my brother is involved as a partner. Take it to a lawyer and sign it. We can’t get married unless you sign the agreement. The BFA is generous. It is not a big deal. It is just security for [Mr D]. What happened with [Ms O] was very stressful. I love you very much, I would not do anything to you. You will be taken care of, don’t worry about it. If you love me, you will sign the agreement.”
Despite her solicitor advising her that she should not be a party to it , she executed the document on 22 October 2007. The parties separated in July 2020 , by which time the husband's assets had grown to over $9.2 million.
Why the Agreement Was Set Aside: 4 Key Reasons
1. Technical Non-Compliance (Section 90B)
The Court found the document was not a "Financial Agreement" under the Family Law Act 1975 because it was not "expressed to be made under" section 90B. While the attached certificate mentioned the section, the agreement itself did not. As the husband did not seek rectification to fix this omission, the agreement failed on technical grounds.
2. Unconscionable Conduct
The Court ruled that the husband’s behavior was unconscientious. Key factors included:
Pressure: He repeatedly stated the marriage would not proceed without the signature.
Undermining Advice: He told the wife her lawyer was giving "wrong advice" and claimed the agreement was "generous" when it offered her nothing.
Empty Promises: He assured her the contract would be changed later in the marriage to encourage her to sign.
3. Material Change in Circumstances (Hardship)
Even if technically sound, the agreement would have been set aside for hardship. The parties had a child in 2010 who was diagnosed with Autism Spectrum Disorder.
The Court ruled that the birth and disability of a child constituted a "material change" not contemplated in 2007.
If the agreement stood, the wife—the primary carer with a $276 weekly income shortfall—would be barred from making a property claim against the $9.2 million pool.
4. Deficient Legal Advice
Under section 90G, each party must receive independent legal advice on the "effect" and "advantages and disadvantages" of the agreement. The solicitor's certificate in this case failed to record that this specific advice was given. The Court concluded the wife did not receive "real and meaningful" advice regarding the rights she was relinquishing.
Contact Surge Legal
If you are considering entering into a Financial Agreement or need to review an existing one, it is vital to ensure it meets all legal requirements to remain binding. We invite you to contact Surge Legal for obligation-free advice regarding these complex matters. Our team can help you navigate the technical and practical requirements of the Family Law Act to ensure your interests are properly protected. For more information please visit the Financial Agreement section of our website.
