PRE-NUPTIAL AND POST-NUPTIAL AGREEMENTS
On 8 November 2017, the High Court delivered its judgment in Thorne v Kennedy  HCA 49. It allowed the appeal of Ms Thorne following the decision made by the Full Court of the Family Court of Australia.
Ms Thorne, not born in Australia, was living overseas when she met Mr Kennedy. Her English language skills were acquired informally. Mr Kennedy was living in Australia. He had three adult children from a prior marriage and was significantly wealthy. After the parties met overseas, arrangements were made for Ms Thorne to come to Australia in February 2007. The parties had agreed to be married.
On 8 and 14 August 2007, the parties attended twice upon Mr Kennedy’s solicitor for the purpose of drafting a financial agreement prior to the wedding. The evidence was that the solicitor spoke only to Mr Kennedy. Ms Thorne was told there would be no wedding if she did not sign the documents.
It was not until about 20 September 2007 that Ms Thorne met with her own solicitor to discuss the financial agreement and discovered the extent of Mr Kennedy’s wealth. She was advised not to sign the agreement and her solicitor raised the ‘suggestion of duress’ with Mr Kennedy’s solicitor. Nevertheless, Ms Thorne signed the agreement and the parties were married later that month. That agreement provided for Ms Thorne to sign a further agreement which would be effective once the parties were married.
The following month, after the marriage, Mr Kennedy’s solicitor provided the second agreement to be signed by Ms Thorne. Once again, Ms Thorne’s solicitor advised her that signing the agreement was not in her interest but she signed it anyway on 20 November 2007.
The parties then separated in 2011 and Ms Thorne made an application to the Federal Circuit Court that the agreements were non-binding or, alternatively, should be set aside or declared void. Ms Thorne raised duress or undue influence at the hearing and the Court agreed with her that she was subject to duress when she signed each agreement.
Mr Kennedy appealed to the Full Court of the Family Court who found in his favour. The wife was then granted special leave to appeal to the High Court.
In the High Court proceedings, their Honours considered duress, undue influence and unconscionable conduct. They held:
In the particular context of pre-nuptial and post-nuptial agreement, some of the factors which may have prominence include the following;
(i) Whether the agreement was offered on a basis that it was not subject to negotiation;
(ii) The emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement;
(iii) Whether there was any time for careful reflection;
(iv) The nature of the parties’ relationship;
(v) The relative financial positions of the parties; and
(vi) The independent advice that was received and whether there was time to reflect on that advice.
The matter will be reverted to the Federal Circuit Court to determine the division of property between Ms Thorne and Mr Kennedy.