Beware! High Court Says Pre-Nup Doesn’t Stick!
HOT OFF THE PRESS – BEWARE AND PREPARE – PRE-NUPTIAL AGREEMENT GONE WRONG!
The High Court has today handed down its decision in Thorne & Kennedy  HCA 49, unanimously allowing an appeal from the Full Court of the Family Court of Australia.
The wife was granted special leave to appeal from the Full Court’s decision by the High Court, and this matter proceeded before the Full Court of the High Court in Canberra on 8 August 2017.
This is a decision that will have great significance both in relation to current Binding Financial Agreements, and new Agreements being contemplated by parties.
The High Court’s decision in unanimously allowing this appeal is based on the Agreements being set aside for unconscionable conduct and that the primary Judge’s reasons were not adequate.
Further, the majority of the Court also held that the Agreement should be set aside for undue influence.
What this means is that parties need to be wary of entering into pre-nuptial agreements and indeed they need to be drafted with a level of formality that ensures their enforceability!
In this matter, the wife had poor English and had been given legal advice on two occasions not to enter into the Agreements but still ultimately decided to execute them. The Court has decided that notwithstanding that she was given the advice, there were factors that meant that she was prejudiced when it came to her entering into those Agreements.
The lesson to take away is beware and prepare, and ensure that you seek specialised family law advice if contemplating entering into or signing such an Agreement.
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