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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NSW Local Courts
2: Toh v Su [2017] NSWLC 10 |
Court or Tribunal: 
Catchwords: Contributions, Property
Judges:  Rodney Brender LCM


Background: Edwin Shien Bing Toh and Winnie Chu Ling Su met through a mutual friend in 2015. By October of that that year Toh had proposed to Su, and they soon opened joint bank accounts and visited a jewellery store to buy a $15,500 engagement ring and two wedding bands totalling $1300. Later, the couple left Australia on a trip to China and Toh gave his fiancée Su both wedding bands “so that she could show them to her parents”. But the course of their relationship ended abruptly on March 5, 2016, when Mr Toh called off the engagement after three months. At a meeting attended by his former fiancée and a friend, Mr Toh said “everything that belongs to each party will be returned to each party”, and Ms Su agreed. Ms Su demanded back all the gifts she had given him, including the s 
 
  [Legal Issue]By section 111A(1) of the Marriage Act 1961 (Cth), the Parliament abolished the right to recover damages for breach of promise to marry. Subsection 2 provides that the section does not affect an action for the recovery of any gifts given in contemplation of marriage which could have been brought if the section had not been enacted. Thus, whilst the action of breach of promise to marry was abolished, it was contemplated that there might still be recovery of conditional gifts. I find however that there was no intention to contract. It was a domestic, emotional setting. The plaintiff suggested they should both give back things belonging to the other. The defendant said “ok”. It was not intended to affect legal rights to retain completed gifts if a party wished to do that.   [Court Orders]The plaintiff had a part victory, in which he was not able to get the engagement ring returned. However the defendant was required to deliver to the plaintiff the two wedding bands and pay the plaintiff $1,000     


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Court or Tribunal: 
Catchwords: Breach of Promise, Jurisdiction, Property
Judges:  G Lunney SC


Background: A Canberra man launched legal action against his former fiancee in a bid to recoup the money he’d spent on her engagement ring after their relationship broke down. The man had first contacted the Melbourne woman and her parents with a view to marriage in late 2014 and they got engaged the following year. But the pair’s relationship soured, partly due to tensions over where they would live, and ended last October. The man had asked his former fiancee to give back her engagement ring, as well as gifts from his parents, but he claimed the items were never returned. He took the case to the ACT Civil and Administrative Tribunal, seeking to recover the cost of the ring and gifts. 
 
  [Legal Issue]Under the Marriage Act, a person can no longer sue for damages linked to social or economic loss arising out of a breach of a promise to marry. But the law doesn’t apply to gifts given in anticipation of a marriage, meaning a person can try to recover an engagement ring, or its monetary value, if the recipient has broken off the engagement. The man's application hinged on whether there had been a breach of the pair’s agreement to marry, and whether that breach had taken place in the ACT. This would bring into play section 22 of the ACT Civil and Administrative Tribunal Act 2009 (ACAT Act). He found there had not been a “unilateral withdrawal by one party in breach of a prior promise”, rather a recognition by two people that their relationship had reached a tipping point an   [Court Orders]Mr Lunney dismissed the man’s application. The parties were ordered to bear their own legal costs.     


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Federal Circuit Court of Australia emblem
4: Kristoff & Emerson [2015] FCCA 13 |
Court or Tribunal: 
Catchwords: Briginshaw test, Contributions, De Facto Relationship, De Facto Relationships, Meaningful Relationship, Proceedings to Alter Property Interests, Property, Substantial Relationship
Judges:  Judge Brewster


Background: The case involved a sex worker who made a claim for a property order against a former client turned partner of 8 years. The applicant alleged that she lived in a de facto relationship with the respondent from 2003 until 2011. The parties met in 1999 when the applicant “was employed as a sex worker and the respondent was one of her clients”, their relationship evolving to a point where the “applicant began to involve the respondent with her family” and from “2000 onwards the sexual relationship between the parties ceased to be a commercial one” 
 
  [Legal Issue]The Court ultimately found that whilst the parties did have a relationship that exceeded “friendship”, it was not enough to constitute a de-facto relationship. There was no financial interdependence or children of the relationship and the applicant did not give up sex work for the respondent. In any event, the Court held that on the facts, it would not be just and equitable to make orders altering the party’s property interests. Parties to a supposed de-facto relationship must evidence more than a mere sexual relationship. The Court will consider the totality of the relationship including amongst others, living arrangements and financial interdependence to establish the existence of a de-facto relationship.   [Court Orders]The Court found that the couple were not in a de facto relationship and as such the claim for property fails.      


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Court or Tribunal: 
Catchwords: Appeal, Binding Financial Agreement, Binding Financial Agreement, Pre-Nuptial Agreement
Judges:  Finn JRyan JStrickland J


Background: A couple, known by the court as Mr Wallace and Ms Stelzer, met in 1998 at the Sydney club where Ms Stelzer worked soon after Mr Wallace split from his first wife. At the time, he was 51 and she was 38. They married seven years later and entered into a prenuptial agreement that Mr Wallace would pay Ms Stelzer $3.25m if the relationship failed within four years. It failed within two.  
 
  [Legal Issue]Mr Wallace tried to renege on their pre-nuptial (binding financial) agreement, arguing that the relevant legislation was unconstitutional because it was retrospective. He argued that his pre-nuptial agreement was signed before the 2010 amendments and so his agreement should be deemed invalid. Mr Wallace also fought to have the pre-nuptial agreement deemed invalid, claiming that Ms Stelzer behaved fraudulently by making "false promises of love and desire for children". He also said his lawyers did not give him adequate legal advice and make clear the pros and cons of the pre-nuptial agreement. He said that his lawyers had taken only minutes to sign it.    [Court Orders]The Full Court of the Family Court ruled the pre-nuptial agreement was binding and that the amended legislation "can have a retrospective operation which is constitutionally valid". The woman who previously worked as a pole dancer is set to receive $3.25 million from her ex-husband after the Family Court ruled against his bid to have their pre-nuptial agreement overturned because of her "false promises". The ruling means that there is much more certainty about the validity of pre-nuptial a     


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Court or Tribunal: 
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Breach of Duty, Contract, Lawyer Complaints, Pre-Nuptial Agreement, Professional Negligence, Property
Judges:  Johnson J


Background:  
 
  [Legal Issue]   [Court Orders]Father of two to be awarded up to $800,000 in damages from his lawyers for professional negligence in preparing a defective binding financial agreement (pre-nuptial agreement).     


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High Court of Australia
7: Stanford v Stanford [2012] HCA 52 |
Court or Tribunal: 
Catchwords: Appeal, Proceedings to Alter Property Interests, Property, Property Settlement
Judges:  Bell JFrench CJHayne JHeydon J


Background: The husband and wife married in 1971. In December 2008, the wife suffered a stroke and moved into full time residential care. She was later diagnosed with dementia. The husband continued to provide for her care and set aside money in a bank account to meet the costs of her medical needs or requirements. He continued to live in the matrimonial home. In 2009, the wife (by one of her daughters as case guardian) applied to the Family Court for orders altering interests in the marital property between the wife and her husband. Under the Family Law Act 1975 (Cth), a court can make a property settlement order if it is "just and equitable" to do so. At first instance, a magistrate ordered that the husband pay his wife $612,931, which represented the amount assessed as her contribution to the ma 
 
  [Legal Issue]The wife (on behalf of one of her daughters as case guardians), sought to have the family home sold, and half the proceedings to go to the daughters. The legal pretext to this action was the albeit involuntary physical separation of the couple. The husband was still residing in the family home, while the wife was moved into full time residential care because of a stroke and dementia. The husband argued that the bare fact of physical separation, when involuntary, does not on its own make it just and equitable to make a property settlement order.   [Court Orders]The Court held that there was no basis to conclude that it would have been just and equitable to make a property settlement order had the wife been alive. She had not expressed a wish to divide the property, a property settlement order would require the husband to sell the matrimonial home, in which he still lived, and the Full Court had found, on the material before the magistrate, that her needs were being met or could be met by a maintenance order. The bare fact of physical separation, when i     


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