Legal Question in Family Law in Australia
Liability in prenuptial attack
Does a solicitor owe a duty to of care to the husband when giving counterfactual evidence to the wife who based on that evidence decides to attack the prenuptial?
This is a case where the wife signed a prenuptial agreement and had independant legal advice both in writing and orally, clearly stating that the husband�s home was to remain separate property. Upon living in the prenuptial home for a period of three years the relationship ended. The wife had different counsel look at the possibility of having the contract overturned. Counsel contacted the original lawyer and asked if he was aware that the wife had been living in the prenuptial home. Despite written evidence that he had given clear advice on the implications of that fact the lawyer made a statement that he would have given different advice had he known. This counterfactual statement gave the wife the ammunition she needed to attack the prenuptial contract. After 2.5 years and a small fortune spent on defence the Judgment went against the wife.
Question!!!!!
Can the husband retrieve costs from the Lawyer?
1 Answer from Attorneys
Re: Liability in prenuptial attack
There is no case authority that I am aware of on this particular point but there are some cases where for example a beneficiary under a will is owed a duty of care by the solicitor prpearing the will. I suspect that there probably is a duty of care but you need the opinion of someone who specialises in professional negligence, not family law.
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