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Cardiff academic’s research applied by the High Court of Australia

13 November 2017

Prenuptial Agreement

Research by a Cardiff Law academic has been cited and applied by the High Court of Australia in a landmark ruling.

Senior Lecturer in Law Dr Sharon Thompson’s book Prenuptial Agreements and the Presumption of Free Choice has been referenced within the recent case Thorne v Kennedy [2017] HCA 49 and has been reported as having ‘changed prenups in Australia forever.’

The High Court applied Dr Thompson’s analysis of the case law concerning what constitutes undue influence. The court adopted her more expansive definition of undue influence and decided that a broader range of contextual factors could be considered by the court so that a range of pressures would have relevance.

In particular, the High Court held one party’s threat to cancel the wedding unless the prenup was signed was a relevant factor in deciding to set aside the prenup on the basis of undue influence. The court set aside the parties’ prenuptial and postnuptial agreements even though such agreements are binding in Australia pursuant to Part VIIIA of the Family Law Act 1975.

The Australian High Court’s decision applied a more expansive view of undue influence in the context of prenuptial agreements as called for by Dr Thompson. In Prenuptial Agreements and the Presumption of Free Choice, Thompson argued that there was potential to recognise power inequalities between parties to prenuptial agreements through the law of undue influence but that previous courts have failed to do so unless the pressure has been extreme.

Thorne v Kennedy has now done this. The leading judgment cited and applied Thompson’s analysis of factors that could amount to undue pressure. The court redefined the parameters in which pressure amounting to undue influence can be taken into account taking a much broader approach.

Dr Thompson commented, “The effect of this judgment is significant. The High Court of Australia has introduced a much more expansive and contextual understanding of what can constitute undue influence. It was previously unclear whether a court would find undue influence when one party threatened to end an engagement unless a prenuptial agreement was signed. The High Court has now established that the effects of such threats are important and relevant to whether a prenuptial agreement has been entered into freely.”

Dr Thompson’s book Prenuptial Agreements and the Presumption of Free Choice (Hart, 2015) combines doctrinal legal analysis, historical study, feminist scholarship, contractual theory and original empirical fieldwork interviewing practitioners in New York. The work has been referenced and discussed by the Law Commission and has become widely cited, discussed and applied by academics in a range of areas, particularly her ‘Feminist Relational Contract Theory’.

Prenuptial Agreements and the Presumption of Free Choice was shortlisted for major book prizes awarded by the Society of Legal Scholars and Socio-Legal Studies Association. A paperback edition has recently been released.

Find out more about Dr Thompson’s research in this short interview.

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