Tue | Nov 13, 2018

A prenuptial agreement is not a part of your wedding plan

Published:Sunday | May 31, 2015 | 11:01 PM

Last week's article highlighted the advantages of having prenuptial agreements. This week, we will look at the disadvantages:

* The negotiation of a prenuptial agreement is not romantic. And if it is not carefully managed it could destroy a couple's relationship.

* The signing of a prenuptial agreement does not guarantee that the terms of the agreement will be upheld by the Court. In fact, the law that gives validity to prenuptial agreement (the Property (Rights of Spouses) Act) clearly states that the Court still has jurisdiction to enquire into any prenuptial agreement to determine whether it would be unjust to give effect to it.

* Where the parties have unequal bargaining power (which is common), one party is likely to feel that he or she has been coerced into signing an unfair agreement. That feeling may persist even after the parties have married.

* In some cases, it is not the parties, but their families, who are insisting on the execution of a prenuptial agreement in order to protect family assets. That could affect the harmonious integration of the couple into each other's families.

* While prenuptial agreements are generally considered to be acceptable when at least one party is entering a second marriage (after divorce or the death of a previous partner), they may be less ideal when a couple is embarking on a first marriage.

* Although the terms of a prenuptial agreement may seem to be fair at the time of signing, as time progresses, with all the changes that life often brings (such as the birth of children or changes in financial fortunes), the terms of a prenuptial agreement may no longer be fair.

* The prenuptial agreement is intended to project the manner in which marital issues should be handled, but those projections may no longer reflect the parties' wishes at the time those decisions must be made.

* At the time of separation or divorce, the provisions made in a prenuptial agreement may be inadequate to enable one spouse or the children of that union to maintain the lifestyle to which he or she had become accustomed during the marriage.

* It may erode trust in the relationship and leave at least one party feeling suspicious about the other's motives.

* It suggests that the parties envisage that the marriage is not intended to last forever.

* Churches frown upon prenuptial agreement, because a marriage is viewed as a partnership in every sense, including a financial context. Particularly in the Roman Catholic Church, the general view is that a prenuptial agreement is contrary to Canon Law (the body of regulations that govern the church) and a couple may not be permitted to marry in those churches if the church is aware that they have signed a prenuptial agreement.

This list is by no means exhaustive and should not be taken to mean that the disadvantages of signing a prenuptial agreement outweigh the advantages. Instead, couples should have frank discussions about the desirability of such an agreement in their marriage and make that decision for themselves.

It should also be noted that, although the disadvantages have been identified in relation to proposed marriages, many of them may be equally applicable if such an agreement is being signed by the couple in contemplation of cohabitation.

-Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofevegmail.com or lifestylegleanerjm.com.