Thorne v Kennedy: A Thorn in the Side of ‘Binding Financial Agreements’?

(2018) 31 Australian Journal of Family Law 183 - 193

U of Melbourne Legal Studies Research Paper No. 860

11 Pages Posted: 14 Jun 2018 Last revised: 3 Dec 2019

Date Written: March 31, 2018

Abstract

A discussion of the High Court of Australia's recent decision in Thorne v Kennedy with reference to the three vitiating factors discussed by the High Court: duress, undue influence and unconscionable conduct. It is suggested that the High Court left unclear the status of lawful act duress, and the overlap between duress and actual undue influence remains unclear. Moreover, it is also unclear how equitable principles interact with the provisions of the Family Law Act. The significance of independent legal advice and a post-nuptial binding financial agreement in this case is also discussed.

Keywords: family law, undue influence, duress, unconscionable conduct, binding financial agreements, prenuptial agreements

JEL Classification: K12, K36, K40, K42

Suggested Citation

Barnett, Katy, Thorne v Kennedy: A Thorn in the Side of ‘Binding Financial Agreements’? (March 31, 2018). (2018) 31 Australian Journal of Family Law 183 - 193, U of Melbourne Legal Studies Research Paper No. 860, Available at SSRN: https://ssrn.com/abstract=3187047 or http://dx.doi.org/10.2139/ssrn.3187047

Katy Barnett (Contact Author)

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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