Case Study: Thorne v Kennedy - A Feminist Legal Perspective

This case study delves into the landmark case of Thorne v Kennedy, offering a comprehensive feminist legal analysis. The assignment examines the background facts, the High Court's judgment, and the application of liberal and cultural feminist perspectives. It scrutinizes the prenuptial agreements, the concept of undue influence, and the significance of unconscionable conduct. The analysis explores how the court addressed issues such as duress, emotional attachment, and financial dependence, highlighting the vulnerabilities of the appellant, Ms. Thorne. The document also provides a critical evaluation of the legal principles, including the Family Law Act, and discusses the implications for women's rights and financial agreements in the context of a male-dominated society. The case study incorporates relevant legal theories, case precedents, and scholarly articles to provide a well-rounded understanding of the case's legal and social dimensions. It highlights the court's focus on undue influence, unconscionable conduct, and duress, and explores the application of feminist theories to understand the power dynamics at play.

Running Head: Thorne v Kennedy
Thorne v Kennedy
Feminist Approach
System04128
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Thorne v Kennedy
Table of Contents
Background Facts.......................................................................................................................2
Judgment....................................................................................................................................2
Liberal Feminism.......................................................................................................................3
Cultural/Difference Feminism...................................................................................................4
Bibliography...............................................................................................................................5
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Thorne v Kennedy
Background Facts
There are two parties in the case. Mr. Kennedy, aged 67, was citizen of Australia having the
business of property developer. His assets were worth 18 million dollars. Ms. Thorne who
was 36 and was living in Middle East and her condition was very poor. They both came in
contact through online and decided to marry each other when they met in real. Ms. Thorne
came to Australia through tourist visa. Before the wedding, Ms. Thorne was asked to sign a
prenuptial agreement by Mr. Kennedy. It is a kind of an agreement signed by the individuals
who are getting married before marriage takes place regarding the ownership of their own
property if the marriage fails in future1. The purpose of signing the agreement was to secure
the economic conditions of his children. She was advised not to agree to sign the agreement
but she signed against advice given to her. There was second agreement was similar to the
first one and against she signed against advice given to her. After sometime, they were
divorced and separated. Ms. Thorne appealed in the Federal Circuit Court for setting aside the
agreement2. During the proceeding, Mr. Kennedy died and legal representatives continued the
suit in the court. Decision by single judge of court decided in favour of Ms. Thorne but Full
Court of Family Court of Australia gave judgement in favour of husband after his trustees
appealed in larger bench. After this, Ms. Thorne went to appeal in High Court of Australia
and her appeal was successful.3
Judgment
High court allowed the appeal of Ms. Thorne based on Section 90K (1) of the Family Act4.
This section says that the court has power and authority to quash any agreement relation to
finance if it satisfies the court that it is obtained through undue influence and fraud. Majority
of the judges in the case ruled that agreement was due to undue influence and hence it is
voidable. One of the judge held that agreement could be set aside because there was
unconscionable conduct and not due to undue influence. Decision of the primary judge was
based on following six matters:
1 Prenuptial Agreements: Who Needs It and How Do I Make One, Nolo (2019) < https://www.nolo.com/legal-
encyclopedia/prenuptial-agreements-overview-29569.html>
2 Jacky Campbell, Thorne v Kennedy – Has the High Court hung financial agreements out to dry?, Wolters
Kluwer (13 November 2017) < https://www.wolterskluwercentral.com.au/legal/family-law/thorne-v-kennedy-
high-court-hung-financial-agreements-dry/>
3 Laura Johnston, Case note: Thorne v Kennedy [2017] HCA 49, Homelist
<https://www.holmeslist.com.au/content/upload/Case%20note%20-%20Thorne%20v%20Kennedy.pdf>
4 FAMILY LAW ACT 1975 – s90K (1)
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1. No permanent status of Mr. Thorne in Australia,
2. Ms Thorne was emotionally ready for the marriage,
3. Ms Thorne was not as financially stable as Mr. Kennedy,
4. The occasion of marriage was known to most of the people,
5. Ms Thorne was emotionally attached in the relationship and in need of motherhood,
6. Ms Thorne was dependent on Mr. Kennedy for everything
The above-mentioned conditions and situations lead to undue influence on Ms. Thorne and
hence the agreement was voidable. The trial judge ruled that Ms Thorne signed the said
agreement because she was pressurised by Mr. Kennedy. The plurality held that the concept
of duress will not be applicable in this case because the according to the facts there was no
choice left with Ms Thorne and it was not pressurisation by Ms. Thorne. The trial court was
not correct in finding of duress in the case.
Liberal Feminism
The Liberal feminist views here will become more convenient. From decades, women have
been suppressed in the male dominating society. Women got their rights in couple of decades
back5. According to Liberal feminism, the law took too long time to recognition the rights of
women to be paid equal to men for same job. It was because there was belief in the society
that women are inferior to men and women are weak, emotional and made for domestic
work6. In Bradwell v Illinois7, Justice Joseph Bradley said that it is in the nature that there
will be difference between men and women and their responsibilities. Man has been defender
and protector of women. The domestic work of the house belongs to women. After most of
the discrimination against women was abolished then also few laws were still against
women8.
It cannot be said that by saying that if she will not sign then they will not get married will
comes under mandatory financial agreement or not. The High Court decided that Full Family
Court failed in finding the reasons to overturn the ruling of trial judge. The agreement was
voidable as there were both undue influence and unconscionable conduct. The court focused
on undue influence, unconscionable conduct and duress. Duress deals with the effect of the
5 Denise Meyerson, Liberal Feminism, Understanding Jurisprudence, p. 174
6 Ibid
7 Bradwell vs Illinois, (1873) 83 US 130
8 Joseph Bradley, Opinion for the Supreme Court Majority in Bradwell v. Illinois(1873), Hanover (2019)
<https://history.hanover.edu/courses/excerpts/165bradwell.html>
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Thorne v Kennedy
pressure on the person. For undue influence, the court said that there are various sources for
undue influence and pressure is one of them. Direct evidences can help in proving the undue
influence. For the unconscionable conduct, there is situation against the innocent person that
will affect the judgment making of that person and the opposite party will take advantage of
that situation9.
Cultural/Difference Feminism
According to this theory, the focus is on the distinction of women from men based on
psychological and physical traits. This kind of feminism believes that women is equal to men
and have authority to substitute them. One of the famous psychologist said that women sees
themselves as attached with other people as at the same time men is part from others. As the
name suggests, men and women have been distinguished from longer period in the name of
cultural and tradition. It can be inferred from given case that Ms. Thorne was completely
dependent on Mr. Kennedy and Mr. Kennedy took the wrong advantage of the situation, as
she did not have enough choice but to sign the agreement. When it is talk in regards moral
dilemma, women’s main focus is on the relationships and the needs whereas the men
generally concerned about rigid rules, individualistic concept like justice and right10.
It can be said that the theories of feminism is still applicable where there is unnecessary
violation of rights of women. The women have been suppressed from longer period of time
and still sometimes they are suppressed. The courts and the government have managed to
curb the violation and biasness faced by women. In today’s world, women have been uplifted
in many fields to work parallel to men.
9 Martin Clarke, Thorne v Kennedy, The University of Melbourne, (9 November 2017)
<https://blogs.unimelb.edu.au/opinionsonhigh/2017/11/09/thorne-v-kennedy-case-page/>
10 Denise Meyerson, Liberal Feminism, Understanding Jurisprudence, p. 182
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Thorne v Kennedy
Bibliography
A. Articles/Books/Report
Denise Meyerson, Liberal Feminism, Understanding Jurisprudence, 182
B. Cases
Bradwell vs Illinois, (1873) 83 US 130
C. Legislation
Family Law Act 1975
D. Others
Martin Clarke, Thorne v Kennedy, The University of Melbourne, (9 November 2017)
<https://blogs.unimelb.edu.au/opinionsonhigh/2017/11/09/thorne-v-kennedy-case-page/>
Joseph Bradley, Opinion for the Supreme Court Majority in Bradwell v. Illinois(1873),
Hanover (2019) <https://history.hanover.edu/courses/excerpts/165bradwell.html>
Prenuptial Agreements: Who Needs It and How Do I Make One, Nolo (2019) <
https://www.nolo.com/legal-encyclopedia/prenuptial-agreements-overview-29569.html>
Jacky Campbell, Thorne v Kennedy – Has the High Court hung financial agreements out to
dry?, Wolters Kluwer (13 November 2017) <
https://www.wolterskluwercentral.com.au/legal/family-law/thorne-v-kennedy-high-court-
hung-financial-agreements-dry/>
Laura Johnston, Case note: Thorne v Kennedy [2017] HCA 49, Homelist
<https://www.holmeslist.com.au/content/upload/Case%20note%20-%20Thorne%20v
%20Kennedy.pdf>
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