10 January 2020
Financial agreements - Amendment after execution
The parties executed a financial agreement. An error occurred in the wording of the superannuation split. The superannuation fund wants two errors changed and initialled. Is this recommended?
Thank you for the question.
Mentor recommends re-executing the agreement. The parties could just initial the changes, however, the advice received from their respective lawyers is based on the original agreement, not the amended version.
The potential issue is whether it could be established that the parties received advice as to the implications of the changes after originally signing the agreement. In Parker & Parker [2010] FamCA 664 the husband made changes to the agreement before he signed it but after the wife had signed, and after the wife’s lawyer had signed the certificate. Although the wife initialled the changes, there was no change to her lawyer’s certificate. The agreement was declared not to be binding.
Parker may be distinguished from the current case if the superannuation fund only requires drafting changes that do not affect the substance of the agreement. However, Mentor is not aware of any case law to support such a distinction.
Regards
Mentor
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