Facts: Mr Kennedy (68 years old, wealthy Australian property developer) and Ms Thorne (38 years old, from Eastern Europe with limited English and no substantial assets) meet on a website for potential brides. K goes to Europe to meet T and 7 months later she moves to Australia to marry him – he warns her that marriage would require her to ‘sign paper’ as he wishes to preserve his assets for his adult children. 10 days before the wedding he presents her with a pre-nuptial agreement and says that the wedding will not go ahead unless she signs. She receives independent legal advice that the agreement is ‘entirely inappropriate’ and ‘the worst I have ever seen’, but signs anyway and soon after the wedding, signs a similarly one-sided post-nuptial agreement. A few years later, the marriage breaks down and Ms Thorne brings a claim that the agreements be set aside for undue influence (among other vitiating factors).
Held (HCA): The agreements were set aside. The agreements should not be enforced upon the breakdown of the marriage and she was dependent on him and the time frame added to the pressure (she felt as though she had no choice. but to sign). While Ms Thorne tried to argue an established class of relationship, the Court refused to introduce a new class of undue influence of fiances. The Court instead looked at actual undue influence and held it couldn’t be free act.
Held (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ at [59], [62]): ‘[I]t was open to the primary judge to conclude that Ms Thorne considered that she had no choice or was powerless other than to enter the agreements. In other words, the extent to which she was unable to make “clear, calm or rational decisions” was so significant that she could not aptly be described as a free agent. ... [T]he factors which lead to a conclusion of undue influence might not be independent of each other. ... For instance, Ms Thorne’s “lack of financial equality” with Mr Kennedy and her “lack of permanent status in Australia” would likely have contributed to her “reliance on Mr Kennedy for all things” ....’