Thorne v Kennedy: Examining Duress in Post-Nuptial Agreements

This case study provides a comprehensive analysis of the High Court of Australia's decision in Thorne v Kennedy, focusing on the validity of a post-nuptial agreement. The central legal issue revolves around whether the agreement could be voided due to duress, undue influence, or unconscionable conduct. The judgment critically examines Ms. Thorne's circumstances, including her lack of substantial assets, relocation to Australia for marriage, and the timing of the agreement's presentation. The analysis considers the application of the Family Law Act and relevant principles of contract law, particularly concerning free consent and the absence of pressure or misrepresentation. The case study also evaluates the amendments made to the agreement and the warnings provided to Ms. Thorne, ultimately concluding that the agreement's nature did not fall under duress or undue influence. The document includes a bibliography of relevant articles and legal resources.

Running head: LAW
Law
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Part 1
Issues
The main legal issue of this case is whether the post nuptial agreement made in between the
parties was voidable for duress, undue influence, unconscionable conduct or not.
Reasoning for the judgment
Considering the case study, certain issues have been come into the light. The first thing that has
been come that is the nature of the agreement was postnuptial agreement. According to the
general agreement law it has been observed that a post nuptial agreement is a written document
that has been executed after a couple gets married. Further, it can be stated that a post nuptial
agreement can be executed to settle the couples affairs and assets in the event of a separation and
divorce. According to the main fact of the case, it has been observed that a prenuptial agreement
has been made in between the parties and the applicability of the agreement has been questioned
before the court of law. According to the court the nature and character of the postnuptial
agreement is not valid as certain during substance followed up during the sign of this agreement.
According to the circumstances of Ms. Thrones addition fact that she had no choice and she was
powerless and she put her signature upon the prenuptial agreement. According to the general
Principle of contract law a contract will take place when our office regarding certain things they
made towards person and that person will accept the contents of the offered with free consent.
The term free consent denotes there shall be no pressure or misrepresentation of fact takes place
while putting signature on the agreement or during the acceptance of the offer. General Principle

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of contract law notes fact that nobody is allowed to make Enemies presentation or in fraudulent
acts to obtain the assent or acceptance of the other party. How were considering the fact of the
case it has been observed that the content of the agreement was agreed by MS Thrones was
obtained by applying duress undue influence and therefore the primary charge of the court has
found that the circumstances of the signing the prenuptial agreement was void in nature.
However, it has been observed that the family court of Australia has rejected the plea of Ms
Thrones and denied the fact that she was unaware about the facts of the case. It has been
observed that before the marriage, she did not know about the content of thee agreement.
However, before the marriage has been consumed, the family advocate of Mr Kennedy had
recited all the facts of the case and all the contents of the case have been stated to her. Therefore,
it can be stated that she had all the knowledge regarding the facts of the case1. Further, it can
state that the Advocates have made certain amendments by the statement of Ms Thrones and
natures of the amendments were minor2. Certain conversation had been taken into place in
between the parties and it has been stated by the advocate that this marriage can be helpful to
Ms. Thrones from her personal aspect. Ms. Thrones had all the chances to think about it and she
had made her consent by signing on the documents. Further, it has been confirmed from the side
of the advocate that the nature of the agreement was not fruitful for her interest and the interest
of Mr. Kennedy will be flourished and secured by this agreement3. The agreement will only take
place so that her wedding will not be called off. It has also observed from the case study that all
arrangements regarding the marriage was took place and all the ceremonial houses were booked.
1 Dewar, John. "Can the Centre Hold-Reflections on Two Decades of Family Law Reform in Australia." Child & Fam.
LQ22 (2010): 377..
2 Graycar, Reg. "Law reform by frozen chook: Family law reform for the new millenium." Melb. UL Rev. 24 (2000):
737.
3 Dewar, John. "Can the Centre Hold-Reflections on Two Decades of Family Law Reform in Australia." Child & Fam.
LQ22 (2010): 377.

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Part 2
Critical analysis of the judgment
While deciding the case, the court has concentrated on the amendments made in the agreement
by Ms Thrones. It has been observed that Ms Thrones had made certain small changes and all the
amendments had been made in the section that states the condition of her in case of death of Mr
Kennedy. The amendment states as follows:
"if necessary a testamentary trust" and it was also provided that Mr Kennedy "will ensure that
any further testamentary dispositions are drawn to contain these provisions and [Mr Kennedy]
shall not execute any further testamentary dispositions without these provisions".
The most important phrase in the case study has laid down in the paragraph number 12 in the
study where it has been clearly stated that the advocate had warned Ms. Thrones to put her
signature on the agreement and the effectiveness of the agreement has also been pointed out here.
It has been observed that while signing on the documents, Ms Thrones did not think about the
possibilities that will be faced by her in case of divorce and she has failed to count her conditions
at that point of time4. Therefore, it can be stated that Ms. Thrones did not act as a prudent person
and she is not entitled to make any plea under the term duress or undue influence and could not
challenge the validity of the contract made in between them. Further, it can be stated that she was
solely liable for all the mishap, as much time has been conferred to her and she had failed to
think reasonably. In addition to this, it can be stated that Ms Thrones had failed to abide by the
4 Kaye, Miranda, and Julia Tolmie. "Fathers’ rights groups in Australia and their engagement with issues in family
law." Australian Journal of Family Law 12.1 (1998): 19-67.

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warnings mentioned to her by the advocate5. She had put her signature on the documents
irrespective of all the warning. It can be stated that she had failed to attract the provisions of
duress. According to Section 87(1)(k) of the Matrimonial Causes Act 1959 (Cth), the court can
sanction a prenuptial or postnuptial agreement that has solely concerned with the property
distribution and maintenance. further, certain registration procedures has been implemented by
the Family Law Act regarding this kind of agreement6. According to the purpose of the Family
Law Act, it is amended to "encourage people to agree about the distribution of their matrimonial
property and thus give them greater control over their own affairs, in the event of marital
breakdown”. Further, it has been mentioned in section 90F(1) and section 90F(2) that "when the
agreement came into effect, the circumstances of the party were such that, taking into account
the terms and effect of the agreement, the party was unable to support himself or herself without
an income tested pension, allowance or benefit7." A close interpretation of the statements reveal
the facts that the agreement was purported to provide an acknowledgement that Ms Thrones can
support her after the divorce even not depended on the money paid to her by Mr Kennedy8.
When an appeal had been filed before the Family Court, certain loopholes regarding the
judgment of primary judge has been come into light. It has been observed that the judge had
failed to analyze the contents made under the provision of Family Law Act9.
According to the general principle of law, when any outside pressure has been made for
obtaining the signature of the parties over a document, the same will be regarded as duress. The
principle of duress has been established in Union Pacific Railroad Co v Public Service
5 Finlay, H. L., M. F. A. Otlowski, and R. Bailey-Harris. "Family law in Australia." (1997).
6 Young, Lisa, et al. Family law in Australia. LexisNexis Butterworths, 2012.
7 Council, Family Law, and Austin Asche. Creating children: A uniform approach to the law and practice of
reproductive technology in Australia. Australian Government Publishing Service, 1985.
8 Gonczi, Andrew. "Competency based assessment in the professions in Australia." Assessment in Education:
Principles, Policy & Practice 1.1 (1994): 27-44.
9 Young, Lisa, et al. Family law in Australia. LexisNexis Butterworths, 2012.

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Commission of Missouri10, "It always is for the interest of a party under duress to choose the
lesser of two evils. But the fact that a choice was made according to interest does not exclude
duress. It is the characteristic of duress properly so called."
Considering the case study, it has been observed that none of the elements have been met
here and Ms Thrones had all the knowledge regarding the outcome of the agreement. Therefore,
it can be stated that the nature of the agreement made in between Ms Thrones and Mr Kennedy
will not fall under the scope of duress or undue influence.
10 248 US 67 at 70 (1918)

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Bibliography
Union Pacific Railroad Co v Public Service Commission of Missouri 248 US 67 at 70 (1918)
Articles
Part 1
Dewar, John. "Can the Centre Hold-Reflections on Two Decades of Family Law Reform in
Australia." Child & Fam. LQ22 (2010): 377.
Kaye, Miranda, and Julia Tolmie. "Fathers’ rights groups in Australia and their engagement with
issues in family law." Australian Journal of Family Law 12.1 (1998): 19-67.
Graycar, Reg. "Law reform by frozen chook: Family law reform for the new millenium." Melb.
UL Rev. 24 (2000): 737.
Part 2
Finlay, H. L., M. F. A. Otlowski, and R. Bailey-Harris. "Family law in Australia." (1997).
Young, Lisa, et al. Family law in Australia. LexisNexis Butterworths, 2012 Council, Family
Law, and Austin Asche. Creating children: A uniform approach to the law and practice of
reproductive technology in Australia. Australian Government Publishing Service, 1985.
Gonczi, Andrew. "Competency based assessment in the professions in Australia." Assessment in
Education: Principles, Policy & Practice 1.1 (1994): 27-44.
Young, Lisa, et al. Family law in Australia. LexisNexis Butterworths, 2012.

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