Such agreements are most especially difficult – and precarious – if between wealthy and older men and younger and impoverished foreign brides.
Two very recent cases – one in Australia and the other in New Hampshire, USA – exemplify the danger.
In the New Hampshire case, my client, from Ivanovo, Russia, the famous “city of brides,” met her husband, a wealthy and substantially older New Hampshire businessman, through a Russian Bride’s website. The Court found that she was living in harsh conditions in Russia, had few assets, and was desperate to leave. She quit her job in Russia soon after they met (due to a request by her future husband). He then paid her modest support until she was able to move to join him in the United States, obtained a fiancée visa for her, and booked her flight to the States. About two weeks before the date of her move to live in New Hampshire he sent an English version of a proposed prenuptial agreement to her (even though her English language skills were rudimentary at that time), which was drafted by his New Hampshire lawyer. She received a version translated into Russian just a few days before the flight and about a week after she arrived in New Hampshire she went with her fiancé to his lawyer’s office, where she signed the one-sided agreement. She did so without any legal advice and with little or no awareness of what she was agreeing to.
The Court found that “the enforcement of the Prenuptial Agreement, under these circumstances, would be so unfair as to shock the conscience of the Court” and it must be invalidated because of its unconscionability.
In the Australian case, Thorne v. Kennedy, the parties (identified by pseudonyms) met online. Ms. Thorne, an Eastern European woman then aged 36, was living overseas and had no substantial assets. Mr. Kennedy, then aged 67, was a wealthy Australian property developer. A few months after they met online, Ms. Thorne moved to Australia to marry Mr. Kennedy. About 11 days before their wedding, Mr. Kennedy told Ms Thorne that they were going to see solicitors about signing an agreement. He told her that if she did not sign it then the wedding would not go ahead. Ms. Thorne was represented by an independent solicitor who advised her that the agreement was drafted solely to protect Mr. Kennedy's interests and that she should not sign it. Ms Thorne understood the advice to be that the agreement was the worst agreement that the solicitor had ever seen. She relied on Mr. Kennedy for all things and believed that she had no choice but to enter the agreement. She signed the agreement four days before their wedding. It contained a provision that, within 30 days of signing, another agreement would be entered into in similar terms, and therefore a post-nuptial agreement substantially identical to the pre-nuptial agreement was signed.
The case ultimately went to the High Court of Australia, the supreme court in that country. It upheld the trial court’s decision that the agreements should not be enforced but with a slightly different rationale. The trial judge had determined that the agreements were invalid for having been signed under duress. The High Court held that the more apparent basis for setting aside the agreements was that the husband had engaged in unconscionable conduct. A majority of the judges also held that the agreements should be set aside on the grounds of “undue influence,” which was preferable to the trial judge’s characterization as “duress.”