MCGREGOR
In last week's article, I pointed out that while prenuptial agreements are common in the United States, they have not yet featured prominently in our legal landscape. This is likely to change when the Property (Rights of Spouses) Act comes into effect.
THE ACT provides for persons contemplating marriage, common-law spouses or married couples to enter into agreements with respect to the ownership and division of their property. These agreements may be made prior to, or during the course of, the marriage or cohabitation or in settlement of differences between the parties.
WHAT PROPERTY CAN THE AGREEMENT AFFECT?
The agreements can be made in respect of real property (e.g. land and buildings) and personal property (e.g. movable property, such as money), whether such property is owned by one or both parties, and even if it is some property which they hope to acquire in the future.
WHAT IS THE OBJECTIVE OF THE AGREEMENT?
Actions related to the division of matrimonial property are usually emotionally-charged, lacking objectivity and fraught with acrimony. By defining the manner in which property may be shared or establishing a formula for each party's share of property to be calculated (while the going is good), parties may be able to avoid the rigours of court if they are prepared to abide by the terms of their agreement.
HOW WILL THEY BE HANDLED BY THE COURT?
By declaring that these agreements do not offend public policy, the legislators are making the way clear for them to be enforced. But, this will only happen if:
i) each party obtained independent legal advice before entering into the agreement, and the legal adviser certified that the implications of the agreement were explained;
ii) the agreement is in writing, signed by each party and witnessed by a Justice of the Peace or an attorney-at-law (if signed in Jamaica); and
iii) the court is satisfied that it would be just to give effect to the agreement.
After reviewing the provisions of the agreement, and considering the time that has elapsed and any change in circumstances since it was made, whether it is fair and reasonable, and any other relevant matters, the court may give effect to the agreement in whole or in part.
Expending time and money in the careful consideration and proper drafting of fair and reasonable agreements have the potential to avoid contentious proceedings and save judicial time, because the parties will not require the court's intervention if they both stick to the agreement. Having an agreement does not mean that the parties are anticipating divorce or separation. It is simply a practical way of dealing with financial matters.
We got off the mark by drafting the Bill, got into the set position by passing the Act. It seems we have become frozen in the starting blocks, because the minister is yet to announce the effective date.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
