The High Court of Australia.
The High Court of Australia.

Local lawyer helps bride win pre-nup battle with millionaire

NORTHERN Rivers law firm Somerville Laundry Lomax has helped win a landmark battle in High Court in a family law case which has attracted frenzied interest in legal circles.

The firm was acting for a woman known as Ms Thorne*, who was pressured to sign what is known as a "binding financial agreement", or "pre-nup", with her wealthy husband, Mr Kennedy*, before their 2007 marriage.

He was a 67-year-old divorcee when they met on online in 2006, she was just 36.

She lived overseas and had no substantial assets, while he was worth more than $18 million.

Soon after they met online he told her if they married: "you will have to sign paper. My money is for my children."

Ms Thorne moved to Australia to live with Mr Kennedy with the intention of getting married seven months after they met. But it was only 11 days before the planned wedding that he took her to sign the agreement - and said if she didn't sign it the wedding would be cancelled.

By this time, Ms Thorne's parents and sister had been flown to Australia from overseas and accommodated for the wedding by Mr Kennedy. Guests had been invited to the wedding, Ms Thorne's dress had been made, and the wedding reception had been booked.

A solicitor contracted by law to independently advise the woman described as "entirely inappropriate" and the "worst agreement" that she had ever seen, and advised her not to sign it.

Should the marriage dissolve any time after three years, the agreement left Ms Thorne with just $50,000.

She was also required to sign a second agreement after their marriage which effectively reinforced the first. Against advice, she signed the agreements.

Less than four years after the couple's marriage, they separated in August 2011.

Ms Thorne launched proceedings in the Federal Circuit Court in April 2012 seeking the court overturn the agreements and award her on the basis that they were signed under "duress, undue influence, or unconscionable conduct".

Represented by Somerville Laundry Lomax, Ms Thorne's claim was successful and the judge set aside the agreements.

The judge noted that Ms Thorne, in moving to Australia had "left behind her life and minimal possessions ... She brought no assets of substance to the relationship. If the relationship ended, she would have nothing. No job, no visa, no home, no place, no community. The consequences of the relationship being at an end would have significant and serious consequences to Ms Thorne. She would not be entitled to remain in Australia and she had nothing to return to anywhere else in the world."

But Mr Kennedy's estate (he died in 2014) appealed the decision to the Full Court of the Family Court, and the first ruling was overturned.

This set the stage for a second appeal by Ms Thorne to the High Court - a showdown of sorts.

Somerville senior partner Rob Warren said it was surprising that the case went so far because most parties tended to settle when they realised the potential costs involved.

"Making that decision to go to the High Court is an extremely difficult decision to make because you need to convince the High Court that the other judges, the Full Court of the Family Court, were wrong. That's no easy task."

However, he said Ms Thorne had "no choice" but to dig in.

"The client was very brave in wanting to pursue it, and we felt it was a just case," he said.

Leading the case was the since retired solicitor Peter Carmont, who will be interviewed about the case on ABC Radio's The Law Report, to air next Tuesday.

The legal team were also able to engage former Queensland Attorney-General Matt Foley as their senior counsel.

On Wednesday this week, the seven judge High Court unanimously granted the appeal in favour of Ms Thorne.

It vindicated the original judge's finding, saying Mr Kennedy engaged in unconscionable conduct and exerted undue influence on her in pressuring her to sign the agreement.

The court also awarded full costs against Mr Kennedy's estate.

Mr Warren said there was no doubt the case would have repercussions, because such agreements were common, particularly with second or third marriages.

"It's been the talk of family law circles for years, it's so important," he said.

"The High Court said in this case that clearly the husband had all the bargaining power and our client had nothing. In that case when you have such unequal positions the court is quite happy to turf those agreements out, because they are unfair."

"It's an important case because it means that (in future) lawyers who draft these agreements will have to take extra care to ensure the end result is fair. If they are not fair, any court now has the authority to throw out the agreement."

The matter now returns to the Family Court for orders to be made on what the Ms Thorne is entitled to.

(*Names have been changed in compliance with restrictions imposed by the Family Law Act)

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