Prenuptial agreement disregarded in property settlement
Silcox & Silcox
The “Prenuptial Agreement”
- As set out previously in this judgment the parties signed a prenuptial agreement on 31 May 1994, the day before the parties were due to be married.
- That document is in (nationality omitted) as that was the only language of the Wife at the time of the parties’ marriage. An accurate translation of that document is set out in paragraph (13) of this judgment.
- It is the Husband’s submission that this document should be seen as binding on the parties as it was entered into freely by both of them and they conducted their financial affairs in such a way as to reflect the terms of that prenuptial agreement.
- It is the Wife’s submission that this prenuptial agreement was signed by the parties some six years prior to the introduction of Part VIIIA of the Act and further that it was signed by both parties, and she in particular, without the benefit of any legal advice.
- It is the Wife’s further submission that she was put under considerable pressure by the Husband to sign the agreement in circumstances where he presented it to her the day before the marriage and he told her that if she did not sign the document the marriage would not proceed. It is the Wife’s evidence that she had moved from (country omitted) to Australia in order to marry the Husband, she was without any family or support in Australia and in those circumstances felt she had no other option available to her but to sign the agreement.
- It is further submitted on behalf of the Wife that subsequent to the parties’ marriage they did not conducted their financial affairs in accordance with the terms of the agreement. It is the Wife’s evidence that the proceeds of sale of her apartment in (country omitted) was used for the benefit of the parties and in particular for the payment of Mr K’s educational costs. Further, it is the Wife’s evidence that the various properties and resources of the Husband listed in the financial agreement were realised and whilst some of those proceeds were utilised in the purchase of Property R, the balance was used by the parties for the benefit of the family as a whole. The funds were used to meet the costs of the various trips made by the parties to (country omitted) and in particular in 1998 when the family moved to live in that country, for the purchase of motor vehicles and in meeting the day-to-day living expenses of the parties, particularly prior to the Husband becoming eligible to receive Centrelink payments and whilst the parties lived in (country omitted).
- The Husband at the commencement of the trial urged the Court to adjourn the hearing of the matter until the High Court handed down its decision in the matter of Thorne v Kennedy. In that matter the High Court on 10 March 2017 granted special leave to appeal on the question of the law of duress as it applies to financial agreements entered into pursuant to Part VIIIA of the Act.
- It was submitted by the Husband that if the Wife is arguing that the agreement entered into by the parties prior to their marriage should not be considered binding on the parties because it was entered into it by her under duress, then this court should await the determination of the High Court before dealing with this issue.
- The agreement signed by the parties predates the introduction of Part VIIIA of the Act. It was entered into in somewhat dubious circumstances and more particularly absent any legal advice to either of the parties. Further, the parties have not conducted their financial affairs in accordance with the terms of the agreement during the period of their relationship.
- Whilst the decision of the High Court in Thorne v Kennedy will be of genuine assistance in clarifying the law on the question of duress relating to financial agreements entered into pursuant to Part VIIIA of the Act, it is not a decision of relevance to this matter given the agreement predates the introduction of that legislation.
- Accordingly, the existence of this document and its terms do not prohibit this court from making orders adjusting the parties’ property interests if the Court is satisfied it is just and equitable to do so.
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