Ms. Thorne filed a lawsuit in the Federal Court of Justice to quash the agreement and request a transaction. Mr. Kennedy died during the proceedings, which was then pursued by two of his children who were the executors of his estate. On September 19, 2007, Mr. Kennedy informed his fiancée that they were going to see a lawyer to sign an agreement. Mr. Kennedy told his fiancée that the marriage would not take place if she did not sign the agreement. Against independent legal advice, Ms. Thorne signed the “pre-marital” agreement under Section 90B of the Family Law Act 1975 on September 26; About four days before the wedding. Note that both parties sought their own independent legal advice and both met the legal requirements. However, the Court of Justice found that this was insufficient in this case. This situation must take into account the circumstances of the implementation of the agreement and the inequality between the two negotiating positions, which outweigh their respect.
A BFA may fail simply because it has not been definitively established. There are strict form and legislation requirements that must be met in order for a BFA to be binding on the parties. This is in principle the written agreement signed by the parties, whereby each party seeks independent legal advice and that the lawyer signs a certificate certifying that it has given that advice. Four days before their wedding, Ms. Thorne and Mr. Kennedy signed the agreement. Ms. Thorne was able to claim that she had signed the agreement under “Hard” and that she had received $1.5 million from Mr. Kennedy`s estate. It is important that these legislative changes allowed the parties to agree on their future regulations before or during marriage or de facto, which was previously legally impossible in Australia. The judge found that the agreements were not binding on the parties and would be repealed.
The High Court stated that it was not necessary to decide whether the agreement was not applicable for “coercion” and unanimously conceded the appeal, on the grounds that the agreement had to be set aside because there had been “unacceptable behaviour” on Mr. Kennedy`s part to have Ms. Thorne sign the agreement. “Dishonest behaviour” means a statement or act considered so inappropriate that it defies good conscience. The definition is so broad because there is no clear definition of unscrupulous behaviour in the law. Shortly after the marriage, the parties entered into a “post-nuptial” agreement under Section 90C of the Family Act. Ms. Thorne again signed up against independent legal advice. In deciding “unacceptable behaviour,” the Court must take into account the principles of common law and justice applied in determining the applicability and validity of contracts under Section 90KA of the Family Act 1975.
The judge found that the first agreement had been signed under duress and that the second was “simply the continuation of the first”; If the woman had not signed the agreement, the marriage would be over. The complainant signed the binding financial agreement proposed by the respondent four days before the marriage, although she herself advised not to do so, and the agreement was totally inappropriate. The complainant signed a similar secondary agreement shortly after the marriage. After four years of marriage, the parties separated and Ms. Thorne asked the Federal Court of Justice to quash the agreements. Ms. Thorne was successful at trial, with the senior judge suspending both agreements for unsering behaviour and inappropriate influence.