High Court of Australia
1: Thorne v Kennedy [2017] HCA 49 |
Court or Tribunal: 
Catchwords: Appeal, Binding Financial Agreement, Binding Financial Agreement, Post-Nuptial Agreement, Pre-Nuptial Agreement, Pre-Nuptial Agreement
Judges:  Bell JEdelman JGageler JGordon JKeane JKiefel CJNettle J


Background: He was a multi-millionaire property developer, she was his much younger Eastern European bride who spoke little English. The couple met online in 2006 on a “website for potential brides” when the husband was 67 and she was 36. The husband, known as Mr Kennedy, had assets of at least $18 million. He was divorced from his first wife and had three adult children. Soon after he met the wife online, he told her that if they married, “you will have to sign paper. My money is for my children.” The agreement said the wife was to receive a total payment of $50,000 adjusted for inflation in the event of separation after at least three years of marriage. It also provided for the wife to receive a penthouse worth up to $1.5m, a Mercedes and continuing income, in the event the husband die 
 
  [Legal Issue]The Federal Circuit Court initially set aside the agreements, finding that they were signed “under duress born of inequality of bargaining power where there was no outcome to her that was fair and reasonable”. However, the Full Family Court ruled the agreements were binding, and said there had not been duress, undue influence or unconscionable conduct on the husband’s part. The High Court disagreed. It said the primary judge’s conclusion of undue influence was open on the evidence and it was unnecessary to decide whether the agreements could have also been set aside for duress. The case will now be sent back for the Federal Circuit Court to decide how the property pool should be divided between the two. Ms Thorne is seeking orders for a further $1.1 million plus a lump    [Court Orders]1.Appeal allowed. 2.Set aside the orders of the Full Court of the Family Court of Australia made on 26 September 2016 and, in their place, order that the appeal to that Court be dismissed with costs. 3.The respondent pay the appellant's costs of the appeal to this Court.     


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Federal Circuit Court of Australia emblem
Court or Tribunal: 
Catchwords: Post-Nuptial Agreement, Pre-Nuptial Agreement
Judges:  Judge Demack


Background: The parties met over the internet in early to mid-2006. She was a 36 year old, born and living overseas with limited English skills. She was previously divorced, had no children and no assets of substance. He was a 67 year old, was a property developer and worth approximately $18 to $24 million. He was divorced from his first wife, with whom he had three children, now all in adulthood. Having met on a dating website in early to mid-2006, the parties then commenced speaking with each other on the telephone. They spoke in English and in (language omitted). The applicant agreed that the deceased said to her: “I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.”  
 
  [Legal Issue]Both agreements were set-aside by the Court because the Court agreed that Ms Thorne signed the agreements because she was under duress. The Court found that Ms Thorne had no negotiating power at all. She fully understood the deceased's position, that she either sign or there would be no marriage. The husband did not negotiate on the terms of the agreement. He did not offer to negotiate. He did not create any opportunities to negotiate. The agreement, as it was, was to be signed or there would be no wedding. Without the wedding, there is no evidence to suggest that there would be any further relationship. Ms Thorne understood that if the relationship ended, she would have nothing. No job, no visa, no home, no place, no community. The consequences of the relationship being at an en   [Court Orders]The wife has been wholly successful in this hearing. The Court has found that both binding financial agreements, including the one prior to the wedding and the one after the wedding, being 26 September 2007 and 20 November 2007 respectively, are not binding upon the parties. Thus are are null and void. As such, both agreements have been set-aside and will not be followed as to the distribution of the estate of Mr Kennedy. The Court has set a new date to determine how much Ms Thorne can     


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