29 September 2017

Relationship Property: M. v H.

Relationship property agreements signed ‘in contemplation of marriage’ require couples to have a clear and present intention to marry, the High Court ruled in a landmark case.  Living together in a de facto relationship with a vague prospect of marriage in the future is unlikely to suffice, leaving any ‘contemplation’ agreement unenforceable on subsequent marriage.
The Property (Relationships) Act which was grafted onto its predecessor, the Matrimonial Property Act, allows couples by mutual agreement to contract out of an equal-shares property regime.  It allows agreements ‘in contemplation of marriage’ but does not define what this means.  The High Court was asked to rule on the status of a relationship property agreement signed eight years before marriage and fourteen years before the couple separated.  At stake was over one million dollars in bank accounts and term deposits held in the husband’s name.  Their anonymity was preserved in the court judgment.
The court was told it was a second marriage for the husband.  He worked in professional practice on his own account.  A relationship property agreement was drafted and signed after 18 months of a de facto relationship.   Both husband and wife took legal advice.  The document was intended to apply if the two married, with references made to any ‘subsequent’ or ‘future’ marriage.  Justice Brewer ruled the agreement could not be viewed as ‘being in contemplation of marriage’ because when signing they had no immediate intention to marry and had made no plans to marry.  It was not valid as a ‘contracting-out’ agreement.
Nevertheless the agreement was binding, Justice Brewer ruled.  It did not comply with current Property (Relationship) Act requirements, but was enforceable under special provisions in the Act as a contract signed by a de facto couple prior to August 2001.  One million dollars held in bank accounts remained the husband’s separate property.   
M v. H – High Court (29.09.17)

17.128