Binding Financial Agreements (BFA’s) or prenups as they are commonly
known are meant to be voluntary, and each party must enter into the agreement
of their own free will, and not because they have been pressured into it by the
other party. The High Court will consider
the issue of “duress” in the matter of Kennedy &
Thorne [2016] FamCAFC 189 where Ms Thorne
claims she was forced to sign the binding financial agreement — because her
husband-to-be, “Mr Kennedy”, said he would cancel the wedding if she
refused. Her legal team argues that this
meant she was “under duress”, and that the agreement should therefore be
declared void by the court.
Mr Kennedy was a divorced, 67-year-old property developer
worth between $18 million and $24 million, while Ms Thorne was half his age
with no assets. They met on a dating
site and he organised to fly to her home country in the Middle East to meet in
person, promising to marry her if they hit it off. After a four-year marriage, she is contesting
a BFA she signed on the eve of the wedding, which left her with just $50,000 of
his fortune and she is now seeking a bigger slice of his wealth.
The High Court will examine the question of whether
threatening to “cancel the caterers” amounted to “unlawful duress”. Mr Kennedy has passed away while the trial
was part heard and the case will be carried on by the husband’s estate. The estate, it seems will counter that Ms
Thorne willingly signed the agreement after obtaining independent legal advice,
and was not concerned at the time about the amount of money she would be left
with if the marriage ended.
The High Court is due
to hear the appeal on 8 August and will need to clarify issues around duress,
undue influence and unconscionable conduct.
If your married, intending
to marry, in a de-facto relationship, have assets or have been gifted an
inheritance then it could be time to think about a BFA. However please ensure that if you are
considering if you want to have a BFA, don’t leave it until the day or two
before the wedding, and don’t threaten to call the whole thing off if your
beloved doesn’t sign.
