A prenuptial agreement, or a prenup, is a legal document that couples sign before they get married or enter into a de facto relationship.
It outlines the distribution of assets, debts, and financial matters during a separation or divorce. However, the validity of a prenup can be called into question if one party can prove that they have gone through signing a prenup under duress.
Let’s explore the concept of signing a prenup under duress and its implications under Australian law.
What is Duress?
Duress refers to the act of exerting undue influence or pressure on an individual, compelling them to act against their will.
In the context of signing a prenup, duress may involve threats, coercion, manipulation, or any other conduct that leaves a person with no reasonable alternative but to sign the agreement.
Prenuptial Agreements in Australia
In Australia, prenuptial agreements are legally binding under the Family Law Act 1975 (Cth). The Act allows couples to enter into binding financial agreements before, during, or after their marriage or de facto relationship.
These agreements can cover property division, spousal maintenance, and other financial matters.
Challenging the Validity of a Prenup
If a party claims they have gone through signing a prenup under duress, they may seek to challenge its validity. However, the burden of proof lies with the party alleging duress.
Australian courts consider several factors when assessing whether duress was present during the signing of a prenup. These factors include:
1. Timing and circumstances: Courts examine the circumstances surrounding the signing of the agreement. It may strengthen their case if a party can demonstrate that they were under significant emotional or psychological pressure at the time.
2. Coercive behaviour: Evidence of threats, intimidation, or other coercive behaviour that forced one party to sign the prenup can be crucial in proving duress.
3. Independent legal advice: Whether each party had the opportunity to seek independent legal advice before signing the agreement is a significant consideration. Lack of legal representation for one party may indicate an imbalance of power, increasing the likelihood of duress.
4. Voluntary participation: The court may inquire whether both parties willingly and voluntarily participated in the prenup negotiation and drafting process.
Also read: Thorne v Kennedy: An Australian Family Law Landmark Case
Legal Consequences
If a court finds that a prenup was signed under duress, it may declare the agreement partially or entirely invalid.
The court can set aside specific clauses or the entire agreement depending on the circumstances.
The court may then determine the division of assets and financial matters based on the applicable property settlement laws.
We Can Help You Too: Signing a Prenup Under Duress
We recently had the privilege of assisting a client who approached us with concerns about a prenuptial agreement signed under duress. Our client, Jane (name changed for privacy), shared her distressing experience and sought guidance on the prenup’s validity.
It was clear that Jane had been subjected to undue pressure and manipulation, leaving her with no choice but to sign the agreement at the time.
We provided Jane with comprehensive legal advice, explaining the relevant provisions of the Family Law Act and the potential consequences of proving duress.
Together, we decided to challenge the validity of the prenup in court.
In the end, the court acknowledged the duress Jane had experienced and declared the prenuptial agreement partially invalid.
Also read: Prenup vs Will
Always Consult With a Family Lawyer: Signing a Prenup Under Duress
Signing a prenup under duress raises important legal considerations in Australia. While prenuptial agreements are generally enforceable, a party alleging duress must provide sufficient evidence to support their claim.
A court may invalidate some or all of the prenup’s provisions if duress is proven.
Consulting with a family lawyer experienced in family law matters is essential to understand your legal rights and options.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
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