Summary:
Thorne v Kennedy is a significant case heard by the High Court of Australia involving prenup and other financial agreements between Ms Thorne and Mr Kennedy.
The court determined that undue pressure and unconscionable conduct influenced the agreements. Ms Thorne, a vulnerable party, was subjected to an ultimatum by Mr Kennedy, leaving her with little choice but to sign the agreements.
The court emphasized independent legal advice and fairness in evaluating the agreement.
Overview:
The case appeals to Australia’s High Court regarding a prenup and a post-nuptial agreement from the Family Court. The primary judge initially invalidated both the prenup and the post-nuptial agreement, citing duress.
However, the Full Court of the Family Court overruled this decision, declaring that neither the prenup nor the post-nuptial agreement was voidable due to duress, undue influence, or unconscionable conduct.
Ms Thorne and Mr Kennedy both appealed the decision.
The Parties / The Relationship:
Ms. Thorne, a 36-year-old woman from Eastern Europe, met Mr. Kennedy, a wealthy Greek-Australian property developer, on an online platform for potential brides.
After their engagement, Ms Thorne moved to Australia to join him. The primary judge found that if the relationship ended, Ms Thorne would have no job, visa, home, place, or community.
The Prenup Agreement / Context:
Before their wedding, Mr Kennedy instructed a solicitor to prepare a prenuptial agreement. He informed Ms Thorne that the wedding would not proceed unless she signed it.
Ms. Thorne signed the agreement only days before the wedding, and it contained unfavorable terms for her. Later, a second agreement with substantially identical terms was signed.
Ms. Thorne’s solicitors advised her not to sign both agreements, but she felt pressured and signed them.
The Relevant Prenup Law:
The case considered sections 90F(1), 90F(1A), 90K(1), and 90KA of the Family Law Act, which pertain to the validity and enforceability of financial agreements and unconscionable conduct.
The Prenup Issues:
The court primarily examined whether the Full Court mistakenly set aside the agreements and whether duress, undue influence, or unconscionable conduct influenced Ms. Thorne’s decision to enter the agreements.
Findings by the High Court:
The High Court ruled that undue influence and unconscionable conduct vitiated the agreements. The court focused on the lack of free choice on Ms. Thorne’s part rather than traditional common law duress.
The court considered factors like emotional circumstances, reflection time, relationship nature, financial positions, and independent advice.
Ms Thorne’s vulnerability and lack of financial equality in Australia led her to rely on Mr Kennedy, hindering her ability to make an independent decision, as determined by the court.
The ultimatum given by Mr Kennedy increased the pressure and further disadvantaged Ms Thorne.
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By Tegan Martens
Director & Principal Lawyer
Martens Legal
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The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based upon your particular circumstances.
