Page 16 - PR Mag Oct18

The Rules Have Changed

on PRE-NUPS

Picture the scenario - A 67 year old man born in the Middle Thorne v Kennedy means it is now no longer necessary to prove
East but now living in Australia and worth in excess of $18M, that extreme pressure (like a gun to the head) was applied and
courts and convinces a 36 year old non-English speaking Middle that instead, in certain circumstances, financial destitution -
Eastern woman to marry and live with him here in Australia. With such as uncertainty as to where the next meal might be coming
neither money nor employable skills, the woman and her family from - can be sufficient. In coming to the decision, the High
are brought to Australia for the wedding and just days before the Court identified six factors that it said would be relevant in any
ceremony, she is presented with a Pre-Nuptial agreement and challenge to any ‘Pre-Nup’: #1 Whether the agreement presented
told - the wedding is off if she does not sign it. With little choice as a “not open to negotiation” proposition; #2 The emotional
the ‘Pre-Nup’ is signed, the marriage occurs and lasts almost 10 circumstances in play at the time of signing. For example, a
years before it becomes unhappy. Under the ‘Pre-Nup’, the woman threat to cancel a wedding or an engagement; #3 Whether there
receives a pittance if she separates and according to established was adequate time allowed for careful reflection; #4 The nature
Australian law, the agreement can only be broken if she can of the parties’ relationship; #5 The relative financial positions of
prove it was signed under ‘duress’ meaning a level of pressure the parties; and #6 The independent advice that was received
akin to a gun put to her head. However, a chance conversation and whether there was adequate time to reflect on that advice.
with a hairdresser leads the woman to engage a small town law All up, a great victory against the odds for the little guy and a
firm who then pairs up with an aging (semi-retired) barrister, and big message to anyone thinking to abuse ‘Pre-Nup’ laws to think
together, they fight it all the way to the High Court of Australia again!
eventually winning the case and rewriting the law on ‘Pre-nups’
in the process. Joshua Noble is an Associate at Zande Law Solicitors, Suite 7,
Sounds like the script for a movie? Norwinn Centre, 15 Discovery Drive, North Lakes. To contact
Well, in scenes highly reminiscent of Darryl Kerrigan in the 1997 Josh for advice, please phone (07) 3385 0999.
classic Australian movie “The Castle”, all of the above played out The information in this article is merely a guide and not a full explanation
in the case of Thorne v Kennedy which was decided by the High of the law. This firm cannot take responsibility for any action readers take
Court late last year. based on this information. When making decisions that could affect your
For anyone seeking to escape the shackles of an unfair ‘Pre-Nup’, legal rights, please contact us for professional advice.