Posts for December 2017

Love, Marriage and Prenuptial Agreements

Monday, December 04, 2017 1:22pm

wedding image.

With about a third of marriages in Australia failing, the option of a prenuptial agreement can be appealing.

The idea is that, before committing yourself to marriage, you enter into an agreement to protect what is owned prior to the marriage, if it fails. It can be thought to be critical to preserving inheritance if there are children of one partner intending to marry.

For years specialist Family Court lawyers have cast doubt about the enforceability of such arrangements. On 8 November 2017 the High Court of Australia delivered its judgment in the case of Thorne v Kennedy. The decision justifies those doubts.

In that case the parties met online on a website for potential brides and they were soon engaged.

Ms Thorne travelled to Australia for the purpose of the marriage leaving behind her life and minimal possessions. The trial Judge noted that if the relationship ended then she would have been left in a position of no job, no visa, no home, no place and no community.

The fiancé asked her to sign a prenuptial agreement and it was clear that if she declined then the fiancé would not marry her. She signed.

The marriage failed. Ms Thorne argued that the agreement should not be enforced because of factors of duress, undue influence or unconscionable conduct. She succeeded at trial and ultimately also in the High Court.

There is a balancing act that is involved in relation to these types of agreement. On the one hand people should be allowed to protect an intended estate for the benefit of their children. On the other hand people should not be bound by an agreement they were unduly pressured to enter into. A complicating feature in such cases is that, sometimes, what seems reasonable prior to a marriage may be considered unfair at the end of a marriage and particularly if it is many years later.

One way of dealing with the issue, if we are to support binding prenuptial agreements, is to give power to the Family Court to register prenuptial agreements.

In that way, if the Court agrees to register a prenup, the parties will know that the Court will subsequently give effect to the agreement. At the same time, if the Court is concerned that a party has been under duress or been the subject of unconscionable conduct, it can decline to register the agreement.

The couple can then decide whether to proceed with the marriage in that context.

Unless there is certainty there is little point in entering into this type of agreement.

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