Legal Hypothetical: Binding prenuptial agreement?

HARRY proposes to Wendy a year after they meet.

Wendy says “Yes!” and wedding arrangements commence.

Six weeks before the wedding, Wendy asks Harry to sign a prenuptial agreement, saying that her parents will not allow them to marry if he doesn’t sign the agreement.

Harry is surprised and upset but nonetheless tells Wendy that he will sign anything to marry her.

Wendy sources a solicitor to provide Harry with advice regarding the agreement.

Harry signs the agreement but states to his solicitor that he feels he is under duress.

The wedding proceeds.

Unfortunately, two years later, Harry and Wendy’s marriage breaks down.

Harry seeks to have the prenuptial agreement set aside and commences property settlement proceedings.

Under the Family Law Act, a prenuptial agreement or financial agreement is binding if the parties receive independent legal advice regarding the advantages and disadvantages of the agreement and the respective solicitors provide signed statements to the effect that independent legal advice was provided.

If a Court is to enforce a financial agreement, the Court must also find that it would be “unjust and inequitable” if the agreement was not binding, disregarding any changes in circumstances after the agreement was made.

The Court can also set aside a financial agreement if a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable.

This can arise in instances of undue influence.

Undue influence can occur if the proposed financial agreement was offered on the basis that it was not subject to negotiation, if there are threats to end the marriage or engagement, and where there was not time for a party to reflect on the legal advice that they receive.

The Court thoroughly examines the circumstances surrounding the prenuptial agreement.

Ultimately, the Court sets aside the agreement and after an analysis of the parties’ contributions and future needs, orders that it is “just and equitable” for Wendy to pay Harry $300,000.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and is not legal advice.

By Manny WOOD, Solicitor

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