Lisa Gough shares her thoughts on the recent High Court judgement between Thorne v Kennedy, whereby their pre-nuptial agreement was overturned.
“The recent decision of Thorne v Kennedy does not mark the end of Pre-nupitals or Binding Financial Agreements in Australia, but reinforces the important role of the Courts in our family law system. It is reassuring to know that people who are disadvantaged and treated unfairly have a level of protection and recourse in circumstances where one person is in a significantly more powerful position than the other.
As lawyers we have a very significant responsibility to advise our clients about whether the agreement they are contemplating is fair to them but it can be difficult to assess whether a client is under a level of duress at times, particularly when they are keen to simply “sign on the dotted line” and get on with their lives.
Certainly, if the proposed agreement is presented to a client and their lawyer at the last minute and there is an element of urgency to get the terms of the document finalised, then alarm bells should be ringing (rather than wedding bells!).
However, it is also legitimate for one person who has a level of wealth to want to protect their assets at the beginning of a relationship, particularly if they have children from a previous relationship they want to provide for in their will.
This is an interesting area where the laws of contract, which have to a large degree been excluded from the realm of family law intersect with marriage and committed relationships.”