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  1. #1
    Thailand Expat David48atTD's Avatar
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    ALERT:- Australia PRE-NUP Landmark case

    Being a Law posting, for context, there are a lot of words so I'll do 'Key Points' then the abstract.
    Key Points:-

    • Pre-Nup ruled invalid/over ruled
    • Ruling by the Australian High Court
    • Decision would set a new precedent
    • High Court made a resounding 7-0 decision
    • landmark ruling to be known as Thorne v Kennedy.
    • Commercial principles of contract law have no place regulating the financial matters of the parties in an intimate relationship

    ---

    Summary:-

    1. Rich Aussie brings 'Eastern European' Lady to his shores.
    2. Wedding is planned.
    3. Sign the Pre-nup before the wedding ... or it's off.
    4. Pre-nup "stated that after three years of marriage, either party could terminate the relationship and Mr Kennedy would give Ms Thorne $50,000"
    5. The Pre-Nup Law hasn't changed, but this landmark ruling tells the courts and practitioners how you should interpret this part of the law.


    "Essentially, the court has said that commercial principles of contract law have no place regulating the financial matters
    of the parties in an intimate relationship."

    ---

    Wall of Text (for those really interested) ...

    How advice at the hairdressers to a millionaire's ex might have changed
    prenups in Australia forever





    When an Eastern European woman complained to her hairdresser that her estranged husband, an Australian millionaire,
    was leaving her with a meagre sum, a voice piped up from a neighbouring chair — "I know where you can get a lawyer".

    That conversation led to a landmark ruling in the High Court this week known as Thorne v Kennedy.
    Family law experts across Australia say the ruling could make prenuptial agreements, known as prenups, difficult to
    enforce into the future for everyone.

    Ms Thorne, a pseudonym to protect the 36-year-old's identity, was represented by Peter Carmont from Somerville Laundry Lomax,
    a firm in the northern New South Wales town of Lismore.

    Mr Carmont said Ms Thorne sought him out on the advice of a stranger in a hairdressing salon.

    "She told her hairdresser about the terrible things that were happening to her and one of the clients piped-up and said 'I know where you can get a lawyer. Lismore. They'll look after you'," he said.



    Internet meeting results in marriage

    About four years earlier a photo of Ms Thorne appeared online.
    A 67-year-old Australian property developer known as Mr Kennedy, also a pseudonym, saw the photo and
    travelled to Eastern Europe to propose marriage.

    "She came to Australia and the marriage was all arranged.
    Over 100 guests were invited.
    Then four days before the event he [Mr Kennedy] came to her and said she would have to sign a piece of paper.

    But he never told her what would be on the paper," Mr Carmont said.

    "When she looked at the document she found it was very restrictive.
    "She was uncertain whether she should sign it and he said to her 'if you don't sign it, the wedding is off.'
    "So she signed it."
    The contract stated that after three years of marriage, either party could terminate the relationship and Mr Kennedy
    would give Ms Thorne $50,000.


    Mr Carmont said Mr Kennedy was worth between $18 million and $25 million.

    "They married and were getting on quite well, and then one day he came to her and said 'here's a notice of termination
    … you've got to get out,'" Mr Carmont said.

    That is when Ms Thorne approached Mr Carmont for legal advice, off the back of the recommendation at the hairdressers,
    and he took her on as a client.



    'We got a brick wall'

    "My background before private practice was Legal Aid and I've lost none of the bad habits of Legal Aid in trying to look
    after people who have been downtrodden," Mr Carmont said.
    "It seemed to me it was unfair. That was my basic feeling. It was unfair.
    "I'm an accredited mediator so I'm committed to dispute resolution. So I tried to negotiate with solicitors for the
    husband and we got a brick wall.

    "There was only one thing to do and that was to preserve her rights. We had to file an application with the court."

    The matter went to the Federal Circuit Court and, in the meantime, Mr Kennedy died.

    The (Lower Court) Judge found the agreements were not valid and could not be enforced.

    Ms Thorne had won.
    (No explanation as to 'why' the agreements were not valid)


    So Mr Kennedy's lawyers took the decision to the Family Court where it was overturned.
    Mr Carmont was shocked and vowed to persist.

    "We thought 'that's awful, we'll go to the High Court'.
    So off we went to the High Court," he said.

    "The High Court made a resounding 7-0 decision saying the original judge was right and
    the Family Court got it badly wrong."


    Prenup precedent set

    Mr Carmont said the decision would set a new precedent for further court cases involving prenuptial agreements.
    "It doesn't change the law, but it tells the courts and practitioners how you should interpret this part of the law," he said.

    "What the court said is that the lawyer has to look at the agreement and say 'is it obviously unfair' and you have to
    look at the surrounding circumstances — such as our case where a wedding arranged with 100 guests that may have
    been cancelled with four days' notice.

    "The High Court thought that was very significant."

    Family lawyers across Australia have weighed-in on the outcome this week, with some saying it will make
    prenuptial agreements difficult to enforce.

    "The High Court has recognised that there will almost never be a circumstance where two partners have equal
    bargaining power in a relationship," said family lawyer Heather McKinnon from law firm Slater and Gordon.

    "Essentially, the court has said that commercial principles of contract law have no place regulating the financial matters
    of the parties in an intimate relationship."

    Here



    Commentary:-

    My feeling is that the High Court has 'Moralistic ruling' rather then a 'Legal' Ruling.

    Now, assuming that Ms Thorne came into the relationship with little or nothing and they had no children,
    then the handshake goodbye money $50,000 would seem appropriate. His net financial worth shouldn't really be considered.

    For example, should that same situation happen to me and my partner ... $50,000 would be bang on the money,
    I'm not a millionaire.

    Had the Court ruled that, at the time of signing the Pre-Nup, Ms Thorne had no comprehension of the agreement
    she was entering into, then I could understand the ruling.

    One of the key issues which the High Court mentions is the statement ...

    and say 'is it obviously unfair' and you have to look at the surrounding circumstances — such as our case where
    a wedding arranged with 100 guests that may have been cancelled with four days' notice.

    "The High Court thought that was very significant."

    Since Mr Kennedy had passed, the statement (if you don't sign it, I'll cancel the wedding) can not be corroborated,
    but it seems to have been accepted as fact by the Court.

    I wonder if the ruling would capture a pre-nup written overseas?


    Your Thoughts?

    Last edited by David48atTD; 10-11-2017 at 03:06 PM.

    “Someone is sitting in the shade today because someone planted a tree a long time ago”

    .

  2. #2
    lob
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    as i understand uk law.. no matter what agreements or contracts u make or sign, u cannot over rule the standing law ... a good case is a contract for euthanasia... the law says no so contract is illegal. provided ur prenup doesn't step over the law no prob.

  3. #3
    Thailand Expat
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    Quote Originally Posted by David48atTD View Post
    represented by Peter Carmont from Somerville Laundry Lomax,
    a firm in the northern New South Wales town of Lismore.
    WTF ???

    They actually exist....ti's a real name !

    Solicitors in Lismore, Ballina & Byron Bay - Somerville Laundry Lomax



    Perhaps they like to advertise that they really take people to the cleaners ??
    Surely one of the partners cannot be named Laundry ???

  4. #4
    How Dare You!!
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    ^seems as though they hail from DJ Pat's corner of the old dart

    https://www.ancestry.com.au/name-origin?surname=laundry

  5. #5
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    Sensationalist article. Yes , you can not contract out of the law (as per Lob, above), but you can still make a financial contract that is binding. The story that raises the issue is one of an old rich guy wanting some young pussy and promising a mere $50 000 after 3 years of what was essentially unpaid "service". Gold-digger she may have been, but nonetheless his prenup was stingy and plainly taking advantage of her. He thought that by stating his assets were for his kids he could cheaply pay her off for her 3 years of services. He was wrong, and rightly so.
    Make a fair and equitable prenup, and it's not going to be over-ruled.

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