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"Pole Dancer Case"
13 January 2014
In a recent decision, we may have had the curtain fall on a long running case called Wallace v Steltzer, reported at 2013 FamCAFC 199. This is colloquially known as the "Pole Dancer Case" because the husband met his second wife, Ms Steltzer, at what the trial judge described as "an adult entertainment venue where the wife was working as a dancer".
Despite the circumstances of their meeting, as the trial judge said "their stars aligned" and within a few weeks they were living together.
At that time the husband was married but separated, and was wealthy. The wife was divorced and had almost no property of any value.
A week or so before they married, they signed a financial agreement known as a prenuptial agreement. Each of them had independent legal advice.
The effect of the financial agreement was to give the wife quite a substantial amount of money, with an even further increase if the marriage lasted for a longer period. In the event the marriage did not last very long: 18 months.
The husband then applied to the court to set aside the financial agreement. There were technical issues about the independent legal advice, and the wording of the certificates of independent legal advice that were attached to the agreement. The husband also asserted that he had been induced to enter into the financial agreement by the wife's fraud, namely that while she said she wanted to marry out of love and have his children, she really wanted only the money.
In 2009, changes were made to the law that were designed to save financial agreements with technical defects, such as this one.
The husband failed in his arguments the first time round, and the case went on appeal. It is the judgment of the Full Court of the Family Court that is referred to above, and the husband failed again. The Full Court found that while the Federal Government's 2009 amendments to the law were poorly drafted, it could find an interpretation that was sensible, and suited the objects of the Act to cure agreements rather than to strike them down. It adopted that approach.
It also found that there was nothing wrong with the legislature making retrospective provisions that would save agreements entered into before the legislation.
On the question of the wife's conduct, the Full Court accepted the trial judge's decision that there was no evidence that she had behaved fraudulently or unconscionably concerning her motivations.
There are now no less than five reported decisions in this litigation and no doubt at least one of the parties hopes that this is its end.
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