Mcgregor
A number of questions were asked in response to last week's
article. This week, we will answer two of them.
Question:
My husband and I signed a prenuptial agreement and had it witnessed by the maid of honour at our wedding. Is it valid?
Answer:
We must look to the provisions of the Property (Rights of Spouses) Act to determine whether your agreement is enforceable because, prior to the act, prenuptial agreements were considered to be contrary to public policy and unenforceable at common law.
Generally, a prenuptial agreement must fulfil the criteria outlined in the act if it is to be upheld by the Court. Each party must have obtained independent legal advice and the attorney must certify that he or she had advised the client of the implications of signing the agreement. In addition, the agreement must
Be in writing.
Signed by each party.
Witnessed by a Justice of the Peace or attorney if it is signed in Jamaica. If executed outside of Jamaica, a Notary Public, High Commissioner or other persons authorised under section 10 of the Act may sign, where appropriate.
Saving clause
Your agreement does not satisfy most of these criteria. However, there is a saving clause. Your entire agreement, or parts of it, may be upheld by the court if it is found that your failure to comply with the provisions of the act has not prejudiced the interests of either party to the agreement.
The court need not even become involved unless either you or your husband attempts to avoid the agreement. In other words, if at the time of the separation, both parties are satisfied that the agreement still represents their true intentions regarding the sharing of their property, there will be no need to have that agreement reviewed by the court for it to take effect.
Rigorous scrutiny
However, out of an abundance of caution, and to ensure that the agreement will stand up to the court's rigorous scrutiny, anyone who is contemplating the signing of a prenuptial agreement should be careful to ensure that the provisions of the act are strictly adhered to.
Question:
We have been discussing prenuptial agreements. Can parties enter into agreements for the sharing of property after they have been married?
Answer:
In addition to prenuptial agreements, the act provides for agreements to be made between spouses who are attempting to settle differences which have arisen concerning ownership or division of their property.
The act does not state that these are the only circumstances in which property agreements may be signed. It is therefore my view that an agreement between spouses, who have not had differences during the course of their marriage or cohabitation, which sets out the manner in which they wish to divide their property on separation, may be enforceable, provided it is prepared and executed in accordance with the provisions of the act.
Do you have a burning legal question? Ask the lawyer. Send your question to: Lifestyle@gleanerjm.com
Sherry-Ann McGregor is partner and mediator with the firms Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com
