Sozu & Sozu [2026] FedCFamC2F 1392

Summary

The parties married in 1985 and separated in October 2021, after a relationship of more than 40 years. Negotiating directly, they agreed to divide their property equally. When a desktop valuation put the former matrimonial home at $1.5 million, which would have required the husband to pay the wife about $300,000, he taped a figure of $2.1 million over the valuation and gave her a two-page extract, telling her it was “a proper valuation”. The wife discovered the forgery, and the husband then proposed a “mid-point” of $1.8 million, which she accepted. The husband also gave her an understated figure for his superannuation. A solicitor who had previously done work for both parties drafted the agreement on their negotiated figures, explaining that he did not take on such work “unless the parties come to me with the agreement sorted”, and certified that he had advised the wife. The agreement was part-performed, but when the wife later refused to transfer an overseas leasehold interest, the husband sought a declaration that the agreement was binding and orders enforcing it.

After hearing the solicitor’s evidence, the husband abandoned his reliance on s 90G(1). The solicitor had never taken instructions on contributions, future needs, disclosure or valuation evidence, so he could not have ascertained the wife’s rights and could not have given the advice s 90G(1)(b) requires (Abrum & Abrum; Dragomirov & Dragomirov) ([77]). The Court accepted that estoppel had little or no role to play under s 90G(1), given the elemental nature of that advice ([79]). Turning to the s 90G(1A) fallback, Judge Betts accepted that part-performance and delay would cause the husband some detriment, but distinguished Dragomirov, where the wife had at least received written advice on the steps a court would follow. Here the wife received not even basic advice about the Part VIII process, the husband had forged the valuation and understated his superannuation, and he did not come to court with clean hands ([98], [102]–[106]). Adopting Thackray J’s observation in Hoult & Hoult that a complete absence of legal advice makes it improper to give significant weight to preserving the bargain, the Court was not persuaded it would be unjust and inequitable for the agreement not to be binding ([105], [107]).

The decision underlines that a signed certificate of independent legal advice is not the same thing as the advice itself. Advice that meets s 90G(1)(b) must be grounded in instructions about the client’s own circumstances and Part VIII entitlements, and a solicitor who simply documents a deal the parties have already struck risks producing an agreement that will not bind. It also shows the limits of s 90G(1A): the content of the agreement is irrelevant to that discretion, but the conduct of the party seeking enforcement is not. With the Court’s jurisdiction no longer ousted, the Part VIII proceedings will now be heard with as much expedition as possible.