Think your money is safe in Australia with a pre-nup and imported EE pussy? Nope.

Paracelsus

Crow
Gold Member
This is an Australian High Court decision and was originally aimed at unconscionable conduct, but in its roots lies the destruction of the pre-nuptial agreements. It also demonstrates the fact that a lawyer (and now, an ex-wife) can keep fucking you after you're dead.

http://www.news.com.au/finance/mone...y/news-story/0a1ff008a26ddfe50a3421f90053db49

IN 2005, Kanye West delivered some sage advice to all wealthy men thinking of entering into marriage with money-hungry women, disparagingly referred to as “gold diggers”.

If you “ain’t no punk”, the rapper warned, “holla we want prenup”. A pre-nuptial agreement is “something that you need to have”, according to Kanye, because when she “leave yo’ ass”, she is going to “leave with half”.

The song remains a classic, but legal experts say a landmark ruling handed down by the High Court on Wednesday spells the “death knell” of pre-nuptial agreements, known as binding financial agreements in Australia.

The decision in Thorne v Kennedy, in which a young Eastern European woman successfully fought to overturn a prenup she signed on the eve of her marriage to a millionaire property developer twice her age, has sent shockwaves through the family law fraternity and could trigger a wave of lawsuits seeking to overturn existing financial agreements.

From a paltry $50,000 she would have been entitled to under the previous agreement, the woman is now set to become a millionaire in her own right.
“Even the lawyers within my team, the young ones, they don’t realise the significance of this yet,” said Slater and Gordon family law expert Heather McKinnon. “It’s really funny. The High Court doesn’t enter our jurisdiction very often — the last [decision] was probably seven or eight years ago — but when it does, it’s significant.”

The landmark case, which has been closely watched by family and commercial lawyers, started way back in 2006 when the then 67-year-old property developer met the 36-year-old woman on a website for potential brides.

Mr Kennedy told Ms Thorne — both pseudonyms, as neither party can be identified in a Family Court case — shortly after they met online, “If I like you I will marry you but you will have to sign paper. My money is for my children.”

Mr Kennedy, a divorcee with three adult children, had assets worth between $18-$24 million, while Ms Thorne had no substantial assets and spoke limited English. Seven months after they met, she moved to Australia to marry Mr Kennedy.

The primary judge noted that Ms Thorne left behind “her life and minimal possessions” and that “if the relationship ended, she would have nothing, no job, no visa, no home, no place, no community”.

Shortly before the wedding, Ms Thorne signed the prenup at the insistence of Mr Kennedy, who threatened to call off the wedding if she did not sign.

That was despite independent legal advice that the agreement was “entirely inappropriate” and the worst her solicitor had ever seen. She then signed another agreement 30 days after the wedding.

Together, the agreements limited her claim to any property settlement to $50,000 after three or more years of marriage. The pair divorced in 2011 after three years of marriage. Ms Thorne took her ex-husband to court in 2012 seeking for the agreements to be overturned.

She sought a property settlement of $1.24 million, including spousal maintenance. Mr Kennedy died in 2014, but his estate continued to fight against Ms Thorne’s bid for a bigger slice of his wealth.

The Federal Circuit Court initially found in favour of Ms Thorne, on the basis that her consent had been negated by way of “undue influence and duress”. Mr Kennedy’s estate appealed to the Full Court of the Family Court of Australia.
The appeal was successful, with the Family Court finding Ms Thorne’s consent had not been affected by undue influence. She appealed that decision, and was granted special leave to the High Court in March this year, with the appeal heard in August.

In its decision, the High Court unanimously found the agreements should be set aside for “unconscionable conduct”, while a majority of the High Court also held that the agreements should be set aside for “undue influence”.

“The findings and conclusion of the primary judge should not have been disturbed,” the High Court wrote. “The agreements were voidable due to both undue influence and unconscionable conduct.

“The fact that Ms Thorne was willing to sign both agreements despite being advised that they were ‘terrible’ serves to underscore the extent of the special disadvantage under which Ms Thorne laboured.”

Ms Thorne’s case will now return to the Federal Circuit Court for a determination on payout. Ms Thorne’s barrister, former Queensland Attorney-General Matt Foley, and Roberth Letherbridge SC, acting for Mr Kennedy’s estate, have been contacted for comment.

According to Ms McKinnon, most in the legal community were saying “it will spell the death knell” of prenups. “The Family Law Act has generally been seen as what we call equities law, so the trial judge has to weigh up what’s fair,” she said.
“A few years ago the parliament introduced a law to say that people could regulate their finances through a binding financial agreement, or in lay terms a prenup, but most family lawyers have had concerns that it’s very hard to impose contract law on family law.

“[That’s] because contract law assumes that people have equal bargaining power, and clearly they don’t, so you’ve had this split between lawyers who believe you should be able to bind people in a contract, and lawyers who believe you can’t in a personal relationship.”

The High Court decision means the lawyers on the “equity” side of the argument won. “The inequality in a relationship almost means it’s impossible to have an equal bargaining power due to differences in age, state of health, mental capacity,” Ms McKinnon said.

She said anyone with existing prenups should be looking over the document with a lawyer in light of the judgement. “You’re better to tell your clients to rely on the Family Law acts,” she said.

Scott Wedgwood, partner at Barry Nilsson Lawyers, pointed out that Mr Kennedy would not have been privy to the independent legal advice received by his wife which later surfaced in court.

“He’s gone about his life after entering into the deed thinking it was binding,” he said. “Here we have a ticking time bomb if you like, because he lives his life, got his property pool, thinks his inheritance for his children might be safe from acrimony.

“He might act in a manner to create more property, thinking all the time it’s not at risk because the lawyers involved have all complied with the Act.

“People can control their conduct, they can monitor their behaviour in negotiations, but they just won’t know what’s going to be said about the process, they won’t know the advice of the other lawyer until it surfaces such as it has here sometimes a decade down the track.


“I know there are lawyers scratching their heads about whether they’re going to draft BFAs for their clients.”
So, yeah. I guess the lesson to be learned here is one most of us already know: don't import the pussy, if you must bang Svetlana, bang her in her home country, and for fuck's sake don't marry it.
 

lazy

Sparrow
Paracelsus said:
So, yeah. I guess the lesson to be learned here is one most of us already know: don't import the pussy, if you must bang Svetlana, bang her in her home country, and for fuck's sake don't marry it.
IMHO the lesson here is don't marry in Australia.
 

AneroidOcean

Hummingbird
Gold Member
Paracelsus said:
This is an Australian High Court decision and was originally aimed at unconscionable conduct, but in its roots lies the destruction of the pre-nuptial agreements. It also demonstrates the fact that a lawyer (and now, an ex-wife) can keep fucking you after you're dead.
That's not really true. I don't know how it is in Australia, but in the USA, if a contract is clearly wildly unfair it is very unlikely to be enforceable.

Beyond that, a pre-nup signed on the night of the wedding is FAR more likely to be questioned/broken than one signed months in advance.

This dude mostly fucked himself.
 

porscheguy

Ostrich
The problem is that the agreement left her with virtually nothing relative to his net worth. Yes, in the US, this type of agreement may or may not be enforced, but it will be litigated heavily. So much that legal bills could be in the millions. In the end, the family would have been better off granting her a bigger settlement so she’d fuck off.

It’s not about what she does or does not deserve/entitled to. It’s about shoring up your position and cutting your losses. Sometimes that means you’ve got to spend a little more than you like. Now they’ll spend a lot more.
 

Menace

Crow
Gold Member
Guys, this is contract amateur hour. You have a woman with limited understanding of the contract being pressured to sign it the day before the wedding? That’s begging to be overturned.

This does not mean prenups are invalid only that stupid prenups are invalid. Any contract signed under duress is voidable. Law 101.
 

CodyB

Kingfisher
Gold Member
The whole prenup was bullshit though. Questionable capacity due to poor English and the manner in which they met. Also, $50,000 is laughable considering the guy is a millionaire and he would have sponsored her for a visa which implies that he would need be responsible for her financially to a certain point.

They've scrapped the Contract completely and reverted back to the family law jurisdiction. I'd be surprised if this was considered a precedent for pre-nups made between a couple of equal bargaining power.

Lesson here is to be extremely careful when entering into a marriage with a foreigner ESPECIALLY if you're sponsoring their visa. If you have the need for a pre-nup, you have enough to give your bride to be enough money to engage her own representation and bargain on her behalf
 

SlickyBoy

Ostrich
Paracelsus said:
Shortly before the wedding, Ms Thorne signed the prenup at the insistence of Mr Kennedy, who threatened to call off the wedding if she did not sign.

That was despite independent legal advice that the agreement was “entirely inappropriate” and the worst her solicitor had ever seen. She then signed another agreement 30 days after the wedding.
Prenups can work but setting yourself up with bottom feeders when you're a multi-millionaire opens up all kinds of escape clauses.

The first bold part was the straw that broke the camel's back. Once he threatened to call off the wedding if she did not sign it, her attorney could argue that she "signed it under duress" which as we know is bullshit, but that is the argument she successfully made. In her favor were limited english skills, financially destitute, being located far away from home and in a culturally unfamiliar environment. Of course, she was aided by a lopsided judiciary staffed with aging cat ladies and lesbians with dicks formerly known as "men" on the bench, all happy to come to her rescue in the name of equality.

The second bolded bit - the post-nuptial agreement, was just unenforceable icing on the cake. Post nuptials are far more unlikely to succeed, especially after she resisted the prenup!

Anyone who wants a prenuptial agreement to function during divorce proceedings needs to ensure that it doesn't contain any surprises in content or delivery. There can be no "do this or else" verbiage or situation presented to the fiancee, and there needs to be ample time before the wedding - several months - so she cannot argue that it was sprung upon her at the last minute. Additionally, the closer the prospective bride is to your financial (or at least cultural) level the less likely the opposition will argue that the agreement was unconscionable and therefore unenforceable.

And for crissakes, never, ever use marriage agencies to find a bride! Nowadays you're either going to be unwittingly trying to turn a whore into a house wife or you'll get a gold digger like the one detailed in this story.
 

N°6

Ostrich
AneroidOcean said:
Paracelsus said:
This is an Australian High Court decision and was originally aimed at unconscionable conduct, but in its roots lies the destruction of the pre-nuptial agreements. It also demonstrates the fact that a lawyer (and now, an ex-wife) can keep fucking you after you're dead.
That's not really true. I don't know how it is in Australia, but in the USA, if a contract is clearly wildly unfair it is very unlikely to be enforceable.

Beyond that, a pre-nup signed on the night of the wedding is FAR more likely to be questioned/broken than one signed months in advance.

This dude mostly fucked himself.
Indeed.

1. Pre-nup signed under duress (a woman alone in a foreign country being given an ultimatum so close to a wedding)

2. Communal property jurisdictions.

Prenups need to done well in advanced, witnessed by both parties lawyers and the signing of the contract recorded by video.
 

Roardog

Pelican
It's exactly the same as Will's. They are not worth the paper they are written on.
The only way to protect your assets is via a trust like Lang Hancock did.

My grandpa died and left hardly anything to my aunty because they were estranged but she challenged and won herself an equal share as the court found that "the Will did not make adequate provision for all children".
 
The article is not being too forthcoming on the facts and is extremely vague on details. It doesn't specify exactly HOW the pre-nup was done. Usually the BOTH parties need to get different lawyers and meet up. This pre-nup looks like a botched job done under duress without real advice from a lawyer. A real lawyer would have suggest getting a TRUST to ensure his money went to his actual children.

This Aussie guy fucked himself over by being careless - could have locked this down easily with a trust. He fucked himself and his kids.
 

NightVale

Sparrow
Has anyone on here actually had a pre-nup be upheld by a court in real life?
Every time I see a post anywhere about them people are always claiming that they will be upheld, but I've never seen any evidence that they anything more than wishful thinking.
 
WARNING SIGN/RED FLAG MISSED

"At the time, Ms Thorne, who was an eastern European woman, was living in the Middle East. She was 36-years-old. She had no substantial assets," five of the seven judges, including Chief Justice Susan Kiefel, said in a joint judgment.
https://www.stuff.co.nz/world/australia/98697650/Australian-High-Court-tears-up-prenuptial-agreement-between-property-developer-and-online-bride

I'm surprised Fairfax/SMH left out the following, described by The Australian:

About 11 days before the wedding, Mr Kennedy told Ms Thorne if she did not sign a binding financial agreement the wedding was off. By that stage, her parents and sister had travelled to Australia for the wedding and were also staying at the husband’s home.
He PAID for her family to come to Australia and in another article from NewsCorp/The Australian (I can't access my digital subscription sometimes in CZ, like today), the journalist explains that there were uncertainties as to how the family members could get back home to EE without his financial assistance.

Paracelsus is right to assume that the man would have probably been screwed anyway, but he didn't help his cause at all - and undoubtedly his lawyers are to blame for that.

Protections against unconscionable contractual behavior are unbelievably strong in the Australian legal system. If the man were alive, he should be suing his lawyers, just as the ex-Australian swimmer and Olympic gold medal winner Grant Hackett did after his prenup became a steaming pile of shit.
 

Buck Wild

Kingfisher
NightVale said:
Has anyone on here actually had a pre-nup be upheld by a court in real life?
Every time I see a post anywhere about them people are always claiming that they will be upheld, but I've never seen any evidence that they anything more than wishful thinking.
That's were I'm at with this. Every few months someone creates a thread discussing some guy who was flayed alive in family court after his prenup's protection was pierced...and right on cue we get a bunch of Monday morning quarterbacks talking about how dumb his legal representation was and that if he had only done something else entirely it all would have worked. At this point, the burden of proof is with the people who claim that prenups can actually protect a man--and at least most of his assets--and I've long had serious doubts.

Just think about what this man would have had to do to avoid a court concluding that he had subjected his wife to duress:

  • Hire separate legal representation for his wife
  • Hire a language interpreter familiar with Australian legalese
  • Have her sign the prenup far in advance of the wedding
  • Give her a certain percentage of assets rather than fixed sum
  • Cannot in any way make it obvious you will not marry if she does not sign
  • etc

And now consider that if at any point the wife declared that was made to feel pressured or even uncomfortable during the entire process, that could be enough for some white knighting judge to rule against you. She could claim that the interpreter didn't do a good job. That she was ill on the signing day. Or whatever. All she needs is a few white knights or manhaters on the bench, and it's all for naught. For many judges, "duress" is a woman-sized hole--all she need do is wriggle though, and you are fucked.


@SlickyBoy
Additionally, the closer the prospective bride is to your financial (or at least cultural) level the less likely the opposition will argue that the agreement was unconscionable and therefore unenforceable.
Yes, but the whole point is to find a wife who has not been poisoned by Western cultural--marrying a woman who is closer to his cultural level completely defeats the purpose.

Anyways, I'd love to see examples of where a prenup actually attached or where all challenges to it were defeated. They probably don't make the news nearly as much, but there shouldn't be total silence about them if they do actually exist.
 

porscheguy

Ostrich
Every time I see a dude in his 60s and up, wife up a cum dumpster half his age, I think to myself, he’s fucking over his kids and himself. I’m not sure why some of these old guys feel a need to be married.

From what it appears, this prenup was shit canned for several obvious reasons:
1. Signed under duress. He hands it to her within days of the wedding. Says no wedding without signature. She has limited English skill, limited resources to get counsel, Translation, etc. Plus she’s thousands of miles from home. Plus she has family of limited means who travelled there for the wedding, and are uncertain as to how they will get home. This could be argued as duress. Her past is irrelevant.

2. I’m not familiar with australian law. I’m no attorney. I do know that contracts which break the law are not legally binding. If you contract a hit man to kill someone, and he leaves with your money, you can’t sue him. Maybe the lawyers can chime in here, but I also think you cannot have a legally binding contract that aims to subvert the law. Let’s say Australia is a communal property jurisdiction. That means all incomes and assets acquired during the marriage are shared by both parties. Each party is entitled to half of what the other party brings in. The prenup stated that she got $50K in the event of a divorce. He’s worth $20 million. It’s perfectly reasonable for him to have made $1-2 million during their marriage of which she’s legally entitled to half. This is not unreasonable.

3. A contract must have considerations for both parties. It can lean heavily to one side or the other, but it must contain some consideration for both. This contract contained no consideration for her.

She was placed under duress to sign off on an agreement that aimed to subvert the law and made no provisions for her. It doesn’t matter if you think she’s a gold digger. It doesn’t matter if she was a Dubai toilet girl in the past. He married her. I presume he was of sound mind when he did so. The question I would have for him is why did he marry her at all? And that question has nothing to do with her past or her character. Why would you marry someone if before you even get married you’re plan is to leave them with virtually nothing if things go south? Don’t get caught up on the money. $50K is nothing if you’re worth $20 million. $50k is an average car and a years lease on a one bedroom apartment in a first world country.

The big problem here is that people think a prenup is a way to cheat the system like a magic pill that relieves you of all financial obligations. And from what I’ve seen, the people who buy into that notion are those who get into trouble with them. They’re the people who are outraged when they see stories like this because they think it’s unfair to the husband or his estate. In reality, if the agreement had been reasonable, considerate, and not forced under duress, it probably wouldn’t have gone back to court. You’ll note that all she requested was $1.25 million plus some alimony. That $1.25m was likely half of what “they” made during the marriage.

Didn’t you people watch the documentary Divorce Inc? Where they discuss how fucked up the divorce system is? And it’s largely due to family law attorneys taking advantage of emotionally charged people, and corrupt judges who go back and forth between the bench and private practice? And these attorneys and judges do shit to deliberately keep the litigation going until they’ve extracted as much money as possible.

I would guarantee if you did a study on prenups that were contested versus those that weren’t, you’d find that prenups written by family law attorneys are more contested than those written by corporate/contract law attorneys who read and write contracts daily. But you’d also find that family law attorneys are the ones who write one sided prenups knowing that they win either way.
 
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