Thorne v Kennedy: A reminder by the High Court of Australia the law of contract and equity underpin family law financial agreements

A family law financial agreement made pursuant to pt VIIIA for parties to a marriage and pt VIIIAB for de facto relationships, of the Family Law Act 1975 (Cth), make it possible for parties to enter into an agreement with respect to the alteration of their property in the event of separation without a court scrutinising the terms. Where a party alleges their genuine consent or judgment has been compromised an application can be made to the Federal Circuit Court of Australia or Family Court of Australia pursuant to ss 90K and 90KA of the Family Law Act seeking the intervention of the common law or equity to overturn the financial agreement in circumstances where conduct is found to vitiate the agreement in the form of duress, undue influence or unconscionable conduct. This article explores the context in which equitable intervention, namely duress, undue influence and unconscionable conduct, were considered and applied by the High Court of Australia in the 2017 decision of Thorne v Kennedy and analyses the impact of the decision for legal practitioners and parties when negotiating, drafting and signing a family law financial agreement.