Pre-nup challenged amid allegation of duress

Published in the Coffs Coast News Of The Area on 21 March 2025.

Harry meets Mary online and they are soon engaged.

When Mary comes to Australia, Harry asks her to sign a pre-nuptial agreement.

The effect of the agreement is that if their relationship ended, Mary would receive nothing.

Mary receives independent legal advice to the effect that the agreement was “entirely unfair” and she should not sign it.

Nonetheless, Mary signs the agreement and the wedding proceeds just 10 days later.

Unfortunately, 4 years later, Harry and Mary separate and a dispute arises in relation to the validity of the pre-nuptial agreement, with Mary seeking a lump sum of $1 million.

The Court states that pre-nuptial agreements (also known as binding financial agreements) were introduced to “encourage people to agree about the distribution of their matrimonial property and give them greater control over their own affairs, in the event of marital breakdown”.

In order to be binding, each party must be “provided with independent legal advice concerning the effect of the agreement on the party’s rights and the advantages and disadvantages of making the agreement”.

Agreements of this nature can be set-aside if “a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable” and the validity of an agreement can be determined “according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of a contract”.

Mary’s legal team argues that she was the victim of duress, undue influence, and unconscionable conduct.

Harry’s team argues that the agreement was “fair and reasonable” because Mary was told at the outset of their relationship that Harry’s wealth was intended for his children and relied on the fact that Mary received independent legal advice before signing the agreement.

Ultimately, in ruling the pre-nup invalid, the Court rules that Mary was labouring under a “special disadvantage” and in the circumstances surrounding the haste of the marriage, Harry took advantage of her vulnerability.

This fictional column is not legal advice.