Part A: Facts
Thorne v Kennedy is a case filed by Ms. Thorne in the Full Court of the Family Court of Australia in 2012. In this case, Ms. Thorne wanted the court to nullify the prenuptial and postnuptial agreements that she had entered with his divorced husband Mr. Kennedy. The couple had been married for four years before they came to separate in 2011. However, Ms. Thorne feels that the agreements she had entered with Mr. Kennedy were unfavorable to her. She signed the documents due to the condition that she was in. Firstly, she was 36 years old and of Eastern European origin. On the other hand, Mr. Kennedy was 65 years old and was a rick estate developer. At the time of their marriage, Mr. Kennedy’s net worth was approximately $ 24 million while Ms. Thorne had no substantial asset.
Mr. Thorne and Mr. Kennedy met online through a dating website. In her profile, Ms. Thorne had described herself as single, without a child and a member of Greek Orthodox religion. Additionally, she described her main language of communication as Greek though she knew little English. Mr. Kennedy too was a Greek Orthodox adherent and he could speak Greek. Indeed, most of their conversation was in Greek.
In February 2007, Thorne moved to live in Mr. Kennedy’s penthouse. This was barely 7 months after the two knew each other. Subsequently, they began wedding plans. The wedding date was set to be 30 September 2007. One month to the wedding; Mr. Kennedy went to the solicitor to prepare for a pre-nuptial agreement. Ms. Thorne was neither aware of the agreement nor its content. Barely one week to wedding, Mr. Kennedy informed Ms. Thorne about the agreement. He took her to the solicitor for her to sign the prenuptial agreement. He told Ms. Thorne that the wedding would be called off in the event she fails to sign the document.
At this point, Ms. Thorne did not know what prenuptial agreement she was told to sign entailed. Hence, she decided to visit an independent solicitor, Mr. Harrison to inquire more about it. By that time, many wedding plans had commenced. For instance, some guests from overseas had started arriving, Ms. Thorne’s wedding dress was ready and the reception venue had been reserved among other plans.
The independent solicitor advised Ms. Thorne not to sign the prenuptial agreement. He argued that the agreement was ill-timed and this was done intentionally to create fear, undue influence, and pressure. Moreover, the independent solicitor argued that the agreement only considered Mr. Kennedy’s interest at the expense of Ms. Thorne. Additionally, it took advantage of her desire to have children. Nevertheless, Ms. Thorne signed the agreement on 27 September 2007.This was four days prior to the wedding.
The prenuptial agreement had a recital that stated that another agreement would be made within 30 days. In regard to this, Ms. Thorne and Mr. Kennedy were to sign a postnuptial agreement. However, this agreement had identical terms with the first agreement. Upon realizing this, Ms. Thorne consulted an independent solicitor once again. The solicitor advised her not to sign an agreement. Despite this, Ms. Thorne signed it.
On 16 June 2011, Mr. Kennedy signed a separation declaration and he sought to divorce Ms. Thorne. The divorce plea materialized in August 2011. This marked the end of their 4-year marriage. However, they did not get any child in their marriage. In 2014, Ms. Thorne filed a suit in the court seeking the terms of the two agreements she had signed to be changed.
Law and Legal principles
The Family Law Act gives the court power to sanction both prenuptial and postnuptial agreements in regard to the distribution of matrimonial property. This applies only in the event of marital breakdown. Part VIIIA of the Family Law gives couples the freedom to make regulated financial requirements. However, this part imposes some requirements in order for the financial agreement to be binding. According to section 90G (1A), each of the party to the agreement must be provided with legal advice. The evidence explores the advantages, disadvantages, and rights that a party has in making the agreement. Secondly, section 90F (1) provides that the party to the agreement must be able to support himself or herself without an allowance, pension or benefit at the time of making that agreement. In regard to section 90G (A) and 90F (A), the agreement that Ms. Thorne entered into was binding. She had received a legal advice prior to signing the agreement and she was able to support herself without any benefit, allowance or pension.
Nevertheless, there are some vitiating factors evident in this case. First, Ms. Thorne could have entered the agreement due to duress. In this regard, duress is any pressure that may deprive a person his or her ability to decide. When a person is subjected to duress, he or she cannot be able to assess alternatives and hence make an appropriate choice. In the signing of the prenuptial agreement, Mr. Kennedy imposed some duress on Ms. Thorne by telling her that failure to sign the agreement would result in cancellation of the wedding. This is intimidation. Thus, Ms. Thorne lacked free choice and hence signed the document.
The second vitiating factor present in this case is undue influence. There is a blur distinction between undue influence and duress. However, undue influence occurs when an individual is put in a condition where he or she will make a conclusion not based on free will. In this condition, a person will have no ability to assess alternatives and decide between them. By requiring Ms. Thorne to sign the prenuptial agreement only four days before the wedding can amount to undue influence’s Thorne probably signed the agreement because there was no adequate time to think about it. The third vitiating factor that can be used to determine the outcome of this case is unconscionable conduct. Unconscionable conduct takes place where one part takes advantage or exploits an innocent party because of its special disadvantage. Besides being a woman, she did not know English fluently. The agreement was in English. These two circumstances might have affected her ability to make the judgment in her own best interests. These phenomena can be better explained by the legal feminist theories.
Equal treatment theory
Equal treatment theory is one of the dominant legal feminist theories that call for gender equality. According to this theory, women are entitled to the same rights as men. In this regard, the law should treat men and women the same. A woman who is similarly situated as the man should be treated the same way the man is treated. The principles of this theory give power to sex discrimination lawsuits. Legally, men and women are qualified to own property and administer estates. Therefore, any preference that male relatives should be administrators or executors of the deceased’s estates at the expense of female relatives should be treated as sexual discrimination.
Importantly, equal treatment theory highlights that women have similar abilities as men. In regard to this, they should be given equal employment opportunities, equal wages and equal access to social, political and economic benefits. In connection with this, legislation that treats women as an isolated group in the public arena is unconstitutional. In the case of Thorne v Kennedy, Mr. Kennedy is making a contract that is sexually discriminative. The contract treats Ms Thorne as a mere party. Essentially, parties in marriage contracts are equal. However, in both agreements signed between Mr. Kennedy and Ms. Thorne, there is express inequality. According to the Family Law Act and in accordance with the equal treatment theory, the matrimonial property should be distributed equally after a marital breakdown. In contrary, Mr. Kennedy gives most of his property to his children and gives Ms. Thorne the least. Certainly, Mr. Kennedy imposed duress and undue influence on Ms. Thorne in order to exercise sexual discrimination in the agreement.
From an equal treatment theory perspective, Mr. Kennedy and Ms. Thorne ought to have shared their property equally after a divorce. This is what prenuptial and postnuptial agreements should have been about. However, this did not happen because Mr. Kennedy perpetrated sexual discrimination. Therefore, the court should exercise sanction on the two agreements and require the terms therein to be amended. This case is similar to that of Reed v Reed of 1971 where the judge ruled that the husband and wife were entitled to an equal share of their matrimonial property.
Part B: The Equal treatment theory explanation
The society has gone through a lot of changes. In ancient times, gender inequality was a normal thing. Men were believed to be superior to women. In connection to this, society assigned them great roles such as breadwinning and protection while women were given simple roles such as domestic duties. This situation left women oppressed and repressed for long. However, through various initiatives carried out by feminist’s theorists and movements, the landscape had gradually changed. Women have proved that they possess similar abilities as men. Thus, the theories that were used to justify the inferior nature of women no longer exist. The equal treatment feminist theorists emphasize that women and men should be treated equally. This should break the barriers in society that naturally exist in regard to what a woman can do or cannot do.
A fair judgment, in this case, could be arrived at if principles of equal treatment theory are applied. Men and women are entitled to the same rights. No gender is entitled to fewer rights than the other. In this case, Ms. Thorne is equal to Mr. Kennedy as parties to the two agreements they were signing. When entering into this agreement, the two parties should be cognizant of this fact. When this is the case, the parties that feel disadvantaged have the opportunity to bargain its share. However, Ms. Thorne could not bargain because Mr. Kennedy already perceived him as a lesser party. When making the judgment, the court should consider this part. The terms of the agreement were only made by one party because that party believed that the other party is less important. This outright sexual discrimination and is sufficient to make the agreement voidable. Hence, the court ought to order for the terms of the agreement to be amended. Alternatively, Mr. Kennedy’s property should be divided equally between Ms. Thorne and Mr. Kennedy’s heirs or children. By doing this, gender equality will have prevailed.
In contrary to many feminist approaches, the equal treatment theory considers both men and women to be equal. Thus, the theory dismisses the idea of labeling women as special groups. Indeed, equal treatment feminists argue that law should treat women as individuals rather than a group. In connection with this, this legal feminist theory asserts that sex-based generalizations in law should be impermissible. Generalization of women brands women a weak image that leads to their subsequent neglect and oppression. However, when these stereotypes are removed, society will be heading to a path of gender equality where everyone is accommodated. Certainly, this will promote social, political and economic development.
The two agreements that Mr. Kennedy and Ms. Thorne entered into were discriminative and hence unconstitutional. They did not consider the two as equal parties. Additionally, Ms. Thorne did not bargain the terms of a contract. That is the only way she could have expressed his understanding of the agreements. In this case, several vitiating factors are evident. Such factor undermines equality. In the midst of duress and undue influence, equal treatment could not be exercised. Furthermore, the condition denied Ms. Thorne freedom to choose alternatives and draw different conclusions. Though he had received a legal advice from an independent solicitor, he was unable to bargain his terms due to the inequality that is already perceived to be there. Equal treatment theory helped to change how people thought about men and women. The theory helped to remove barriers that prevented women from accessing economic and social opportunities. Equally, it allowed women to participate in suffrage activities as either voters or candidates. Just as equality is promoted in social political spheres, it should too be promoted in the corridors of justice. Judges should handle matters pertaining to gender inequality decisively. The challenge to this is that very few judges are in legal school of that. Nevertheless, the judges should try to balance the interests of women and men. In doing so, they should disregard the subjective feelings that men are superior, they deserve more, and they are more capable and so forth. When this is done, the society will be able to progress. Furthermore, this model will be the basis upon which women in the society will be respected.
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