published: Monday | September 12, 2005
"Eve, will you please marry me?" asked Adam. "Yes, Adam, but only if you sign this prenuptial agreement," replied Eve. PERHAPS THIS was Stella's (Terry McMillan's) response to Jonathan Plummer's marriage proposal. Although she was happy she got her groove back, Stella had the presence of mind to secure her fortune from Jonathan's grasp. Now a legal battle is brewing because Jonathan wants to avoid the prenuptial agreement that will prevent him from sharing the millions Stella earned from her books. How would our court handle this situation? WHAT ARE PRENUPTIAL AGREEMENTS? Prenuptial agreements are contracts signed by couples contemplating marriage setting out the exact amount each party will receive in the event that they are divorced. They are quite common in the U.S.A., but I have not seen any reported cases in Jamaica which refer to them. THE CURRENT LAW The division of matrimonial property is governed by the Married Women's Property Act, which makes no reference to prenuptial agreements. This means that we must look to the common law for guidance and, particularly, how the English courts have handled the matter. In the usual conservative style, the attitude of the English courts was that prenuptial agreements were unenforceable as being contrary to public policy, because they undermined "the concept of marriage as a life-long union." The courts gave little regard to them. Recently, there has been a gradual shift in this position. In a 2002 decision (M v M), the court was prepared to at least use the prenuptial agreement as one of the factors in determining how to divide matrimonial property. By 2003, in K v K, the wife was awarded the lump sum payment to which she was entitled under the prenuptial agreement, but the court also ordered that she should receive maintenance although the agreement did not provide for it. The agreement was therefore largely determinative of the matter. WILL OUR LAW EMBRACE THEM? Pursuant to section 6 of the Property (Rights of Spouses) Act each spouse is entitled to one-half share of the family home. However, section 10 of this act allows couples to contract out of this
provision and make arrangements for the division of their property as they see fit. In other words, the act recognises the enforceability of prenuptial agreements. But, until the minister announces the date for this act to take effect it will only be useful for academic discourse. It seems we have made the right move in establishing a legislative framework for the handling of prenuptial agreements, because the original view that they were unenforceable seemed to fetter an individual's freedom to contract. With the inclusion of adequate safeguards to protect the weaker party, it is difficult to see why our courts would not give due regard to such agreements. In the same way our courts have embraced alternative dispute resolution in an effort to save judicial time, and to empower litigants to find solutions to their problems, a couples' predetermination as to the manner in which they wish to treat with their property once they separate should be accorded some respect. The guidelines just need to be very clear.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to firstname.lastname@example.org.