Tuesday, November 16, 2021

Three days** before wedding: ‘’Hey! Let’s sign a prenup!’’

There have been a number of high profile cases in relation to the enforceability of binding financial agreements or ‘prenups’.

Anecdotally, a number of specialist family law firms now refuse to advise on these types of agreements and the case of Parkes [2014] FCCA 102 provides another example of a situation where a binding financial agreement was held to be invalid.

The key factors in the case here were as follows:
  1. The couple had been in a relationship for around six years, and engaged to be married for almost a year.
  2. The husband raised the idea of a prenup three days before the wedding and provided the spouse with a full agreement and the warning that if she did not sign it ‘the wedding was off’.
  3. The wife claimed that she signed it within 24 hours on the basis that she felt she had no other choice, given the investment that had been made by the two of them and the significant number of guests invited to the wedding.
  4. The court analysed the relationship between the parties and said that the husband had a special duty because of the unequal bargaining position and influence that he had over his wife.
  5. Due to this aspect of their relationship, the husband owed a greater duty to the wife to give her sufficient time and space to consider her position. As this had not been done, the agreement was held to be invalid.
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** For the trainspotters, the title of today's post is riffed from the Janes Addiction song ‘Three days’. View here: