The case of Dragomirov & Dragomirov [2024] FedCFamC1A 187 has been quoted in a more recent decision of Judge Murdoch at para 50 of Chetri & Thapa [2024] FedCFamC2F 1611
(should be para 50 below)
- Whilst the Full Court has cited with approval earlier decisions that have held that the only enquiry necessary is to whether advice has been given and not as to the content of that advice[5], in Dragomirov & Dragomirov [2024] FedCFamC1A 187 (“Dragomirov”), the Appellate Division affirmed as correct the principles identified by Aldridge J in Abrum & Abrum [2013] FamCA 897 as to the content of legal advice required to be provided to achieve compliance with s90G(1)(b) of the Act:-[5] Wallace & Stelzer and Anor [2013] FamCAFC 199 citing with approval the decisions of Logan & Logan [2013] FamCAFC 151 and Hoult 2013.39. In order to give advice about the effect of an agreement on the rights of a party, that is their rights under the Act in relation to property, a legal practitioner must establish what those rights are at the time the advice is provided. This is because s 90G(1)(b) requires advice to be given on the effects of the agreement upon the rights of that party and the advantages and disadvantages of the agreement. If their rights are not known then it is impossible to advise as to the effect of the agreement on them.40. It is unhelpful to advise a person that a financial agreement might adversely affect his or her rights if those rights are not identified. A party must know more than some unknown or undefined right is being given up. He or she must have some idea, at least in general, of his or her present entitlements or rights (to use the words of the section) with which he or she may compare the provisions of the proposed financial agreement. It is only in that way that there can be actual advice about the effect of the agreement on those present rights.41. It is quite clear that a person may choose to enter into an agreement where he or she may very well be much worse off than if he or she were left to rely on their rights under s 79 of the Act. Thus, there is a requirement for specific legal advice to be given. That is the safeguard the legislature imposes when it permits the parties to deal with their property by agreement and without possible interference from a court.42. Accordingly, the advice must be real and meaningful. It must be directed to the parties’ circumstances and their present rights.43. Proper identification of a parties’ rights can only be done by identifying the property of the parties then held and a consideration of the parties contributions (financial and non-financial) to the acquisition of that property and to the welfare of the children. Any other relevant factors under s 79(4), including s 75(2), would then need to be considered. Only by doing so can advice be given that complies with the terms of s 90G(1)(b).…45. Similarly, advice about the advantages and disadvantages for a party making the agreement must involve a consideration and weighing of what would be their rights but for entering the agreement and those advantages and disadvantages after having entered the agreement. No doubt each would have its advantages and disadvantages and they need to be compared.(Emphasis added)
The recent Federal Circuit and Family Court decision in Dragomirov & Dragomirov [2024] FedCFamC1A 187 offers a fascinating glimpse into why Binding Financial Agreements (BFAs) remain one of the most powerful tools in family law – even when things go wrong.
The Case That Had Everything Go Wrong
Meet the Dragomirovs: a couple married for 27 years with assets worth $1.43 million. When they separated in 2020, they did what many couples do – they negotiated a financial agreement to divide their property without going to court.
But this case became a textbook example of how not to handle a BFA:
- Inadequate legal advice: The wife’s lawyer failed to properly explain her rights
- Allegations of forgery: Claims the husband forged signatures on property documents
- Misrepresentation claims: Arguments about hidden asset values
- Family violence allegations: Suggestions of controlling behavior during the marriage
Despite all these issues, the agreement survived. Here’s why that matters for anyone considering a BFA.
When “Perfect” Legal Advice Wasn’t Perfect
The wife received legal advice from Ms Wojda, who provided:
- A detailed letter explaining the court’s property settlement process
- A private meeting to discuss the agreement
- Certification that proper advice was given
But here’s what went wrong: Ms Wojda never asked about the couple’s contributions to the marriage or discussed the wife’s future needs – fundamental elements required for proper legal advice under section 90G of the Family Law Act.
The court found this advice was legally inadequate. In a normal world, this would have invalidated the entire agreement.
The Safety Net That Saved the Agreement
Instead of throwing out the agreement, the court used section 90G(1A) – a provision that allows courts to enforce BFAs even when the strict legal requirements haven’t been met, if it would be “unjust and inequitable” not to do so.
Why did the agreement survive?
1. Real Understanding Despite Flawed Process
The wife clearly knew what she was signing:
- She acknowledged in writing that she was getting $28,000 less than a 50/50 split
- She read the agreement privately and had opportunities to ask questions
- She attended the lawyer’s office specifically to sign
2. Genuine Performance
Both parties had already performed their obligations:
- The husband paid the wife $390,000
- The wife transferred her interest in the family home
- The property settlement was essentially complete
3. No Exploitation
Despite the allegations, the court found:
- No evidence of fraud or misrepresentation
- No undue influence or unconscionable conduct
- The relationship was “amicable” at the time of signing
Why This Shows BFAs Are More Powerful Than You Think
Certainty Over Perfection
The Dragomirov case demonstrates that courts prioritize substance over form. Even when the technical requirements aren’t perfectly met, if both parties:
- Genuinely understood the agreement
- Voluntarily entered into it
- Have performed their obligations
The agreement will likely be enforced.
Protection from Changed Circumstances
Section 90G(1A) specifically requires courts to ignore “changes in circumstances from the time the agreement was made.” This means:
- Market fluctuations in property values don’t matter
- Changes in income or employment are irrelevant
- Even if one party would be better off going to court later, tough luck
Finality That Courts Respect
Judges don’t like reopening settled arrangements. The Dragomirov decision shows courts will work hard to uphold agreements where:
- Both parties acted in good faith
- No serious procedural violations occurred
- The outcome isn’t fundamentally unfair
The Broader Lesson: Why BFAs Remain Essential
Even Imperfect Agreements Work
The wife in Dragomirov got a “bad deal” – $28,000 less than a 50/50 split. But as the court noted: “parties are perfectly free to enter into a bad bargain by way of a financial agreement.”
This isn’t a bug in the system – it’s a feature. BFAs allow couples to prioritize:
- Certainty over potential upside
- Speed over lengthy court proceedings
- Privacy over public litigation
- Control over leaving decisions to a judge, and delays involved.
When Everything Is “Perfect,” BFAs Are Even More Valuable
If a flawed BFA like the Dragomirovs’ can survive legal challenge, imagine how powerful a properly drafted agreement is when:
- Both parties receive comprehensive legal advice
- All assets and liabilities are properly disclosed
- Future needs considerations are documented
- The agreement is genuinely fair
Such agreements are virtually bulletproof.
Practical Takeaways for Family Lawyers and Clients
For Lawyers: The Standards Are High But Not Impossible
The Dragomirov case confirms that section 90G legal advice must be real and meaningful:
- You must establish what rights your client currently has
- You must explain what they’re giving up by signing
- Generic advice about “court processes” isn’t enough
- You need to discuss contributions and future needs factors
For Clients: BFAs Offer Remarkable Security
Even when legal advice is flawed, courts will enforce agreements that represent genuine bargains between informed parties. This means BFAs offer:
- Protection from future claims even if circumstances change dramatically
- Certainty of outcome regardless of which judge you might get
- Immunity from legal technicalities if the substance is fair
The Bottom Line
The Dragomirov case is a powerful reminder that Binding Financial Agreements remain one of the most effective tools in family law. They provide:
Certainty in uncertain times
Finality when you need to move on
Protection from future legal challenges
Even when things go wrong – inadequate legal advice, disputed signatures, allegations of misconduct – a BFA that represents a genuine agreement between informed parties will likely survive.
Both parties need to:
- receive proper advice,
- make full disclosure, and
- make sure the agreement is fair.
That’s when BFAs become virtually unbreakable.