Family Law: 18 March 2019
"Duressis a word commonly used to described a circumstance where pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform. For family lawyers, there can be no greater form of duress than a prospective groom threatening to cancel a wedding two days before the ceremony.
This is particularly so given that by this time, families and the couple, have spent significant funds hiring a reception venue, purchasing a bridal gown and an expensive suit, and the significant cost of flowers and other items to create a beautiful wedding. The pressure of families flying from interstate to witness the nuptials, and close family members and friends travelling to the venue to witness what should be the happiest of days, all amounts to a significant time of pressure for a couple.
In a recent case before the Federal Circuit Court (http://www.heraldsun.com.au/news/victoria/judge-throws-out-prenup-bridetobe-was-forced-to-sign/story-fni0fit3-1226890610576), the court found that the prospective husband, who had driven the bride to a lawyer to seek advice on a Binding Financial Agreement in the 48 hours before their wedding, had placed the wife in circumstances of duress, by threatening to cancel the wedding if she did not enter into the agreement.
Faced with cancelling the wedding, the wife's parents having pre-paid $35,000 for the reception, the wife entered into the agreement which saw her receive little benefit in the event of their separation. After a 6 year relationship, and two children together, the agreement provided for the wife to retain the assets in her sole name (consisting of a car and superannuation) in the event of separation, with the husband retaining his substantial assets including a property valued at $280,000, savings in excess of $410,000 and superannuation, assets which had increased in value during the course of their relationship.
The Court set the agreement aside following the couple's separation, finding that the wife would suffer hardship if the agreement was held to be valid.
Ultimately this case serves as a warning to lawyers, and to couples contemplating a financial agreement, that circumstances of duress will not be tolerated by the Court, and that parties must be given ample opportunity to seek independent legal advice, free from pressure or duress to enter into such agreements.