in a bizarre case, a man seeks to nullify his prenuptial agreement with his former wife claiming that the law governing such contracts is invalid.
The case has become widely known as “the pole dancer case” because the wife, Ms. Stelzer, was formerly a pole dancer. She met her husband, Mr. Wallace, in a Sydney club and got married in 2005. They executed a prenuptial agreement providing that Mr. Wallace will pay Ms. Stelzer $3.25 million if the marriage breaks down in the first four years. The marriage lasted for only two years.
The Family Law Act was changed in 2004 by requiring that solicitors should undertake certain measures to ensure that their clients understood the impact of prenuptial agreements. The government in 2010 relaxed the wordings because the 2004 changes in requirements resulted to numerous cases with clients asserting that lawyers failed in their obligations. Mr. Wallace, however, argues that there should be no retroactive application of the 2010 changes to his case because that would be unconstitutional.
Mr. Wallace claims that contrary to the requirements of the law, he was not given proper advice by his original solicitor at the time he executed the contract. The pros and cons of entering into a prenuptial agreement were not allegedly explained to him.
Lawyers are closely observing the developments of the case because if the man succeeds, virtually all the prenuptial agreements executed since 2004 will be invalid. They are also especially concerned because they will be vulnerable to lawsuits on the ground of neglect in their duties during the execution of prenuptial agreements. In fact, in December 2012 former Olympic swimmer Grant Hackett sued his former solicitors for bungling his prenuptial agreements with his wife.
The legal term for prenuptial agreement is financial binding agreement. Section 90 (1)(b) Family Law Act provides that the parties must have received independent legal advice prior to entering into the agreement. The focus of the court should be directed towards determining whether there has been a compliance with this requirement. Oral and documentary evidences must be presented proving or disproving the compliance.
Mr. Wallace, in seeking to nullify his prenuptial agreement, has launched an indirect attack on the validity of the law. This should not be permitted. His case before the court is not the proper venue to impugn the validity of the law. Furthermore, until a law is amended or repealed it remains valid and applies to all including Mr. Wallace.
Alexander, Harriet (2013, February 24). ‘Pole dancer’s’ case threatens prenups.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.