Why all the fuss?
The High Court recently handed down a judgment in the case of Kennedy v Thorne. To cut a long story short, a younger woman met an older man on the internet, she said she wanted a nice life in Australia, he said he wanted to protect his assets for his children. She moved to Australia and then days before their wedding, when her family were already in the country for the wedding, she was given a Financial Agreement to sign (this is the Australian version of a pre-nup). You can read the High Court's summary of the case on the right. The High Court decided to set aside the Financial Agreement.
Why set the agreement aside?
There is previous case law that giving a party an Agreement on the eve of the wedding is on the face of it duress. Why this agreement was not taken care of well before the wedding is uncertain, but it was always unwise. The lawyers presumably realised this as they sought to have the wife sign a further agreement after the wedding, though that was probably always an inexact response. The simple answer is that, as with so many legal issues, the lawyers should have been involved much earlier on in the relationship.
The initial court found that there was duress, the High Court found that there was unconscionable conduct and undue influence. Part of the reason for this was the timing of the agreement and whether the wife really had an opportunity to negotiate, and part of this was the one sided nature of the agreement.
Is this new?
There is a bit of fuss about this case but really, it is nothing new. Giving a pre nup to the weaker party close to the wedding was always an issue because there is generally pressure on the spouse at that time. A wholly one sided agreement always suggested undue influence or unequal bargaining power. Without having read the actual agreement it is difficult to comment, but perhaps the agreement needed to be softened.
What should I do?
Speak to your lawyer early, much earlier in the relationship. This advice applies to most transactions actually, if you make an appointment to see one of us and the answer is we aren't needed yet we will tell you that and you can gather the information we need and come back when you do need us. The consequences though of seeing us too late are often that we cannot fix certain things that have happened in the past.
Make an appointment
Make an appointment to come and speak with Hamish Williams today if you are in a de facto relationship and you want to protect your assets. For many reasons it is important to do this earlier in the relationship. Hamish is detail oriented and will ensure that your matter is well looked after. The first appointment is free, if we can't help you then you haven't lost anything.