Judge Phipps set aside a s90B financial agreement in the case of Parkes v Parkes [2014] FCCA 102,  that had been made just two days before the parties’ wedding.  The husband had raised the issue of a pre-nuptial agreement three days before their pre-arranged wedding date. The husband had said to the wife “if she did not sign it…the wedding was off”. At trial, in her evidence the wife signed the agreement saying “she had no choice”.  All the wedding arrangements had been organised and paid for at considerable expense.

Before the marriage the parties had been in a de-facto relationship for six years and engaged to be married for 11 months.

Judge Phipps in his decision cited the authority of Louth v Diprose [1992] HCA 61 and said at [65]:

“The jurisdiction of equity to set aside gifts procured by unconscionable conduct ordinarily arises from…a relationship between the parties which, to the knowledge of the done, places the donor at a special disadvantage vis-a vis the donee; the donee’s unconscientious exploitation of the donor’s disadvantage; and the consequent overbearing of the will of the donor whereby the donor is unable to make a worthwhile judgement as to what is in his or her best interest…”

Further Judge Phipps stated at [68]:

“The wife says she considered that she had no choice. She was clearly in a position of special disadvantage and the husband knew so.  The prenuptial agreement was not to the wife’s advantage…Nevertheless, she signed it because she considered she had no choice”

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