Flair

The evolution of the law in England in relation to prenuptial agreements has been quite different from the Jamaican experience. Whereas section 10 of the Property (Rights of Spouses) Act, which came into effect on April 1, 2005, specifically made prenuptial agreements enforceable by providing that 'spouses or two persons in contemplation of their marriage to each other or of cohabiting may for the purpose of contracting out of the provisions of this act, make such agreement with respect to the ownership and division of their property (including future property) as they think fit", in England prenuptial agreements are still contrary to public policy and are, therefore, neither valid nor binding.

England still relies on the common law in respect of prenuptial agreements, although a report dating back to 2005 strongly recommended that prenuptial agreements should become legally binding and enforceable. However, despite the absence of legislative support, the courts in England have taken an approach which gives regard to prenuptial agreements, although maintaining the position that they are contrary to public policy.

In an interesting 2009 English Court of Appeal decision - Radmacher v Granatino - the husband and wife had signed a prenuptial agreement indicating that neither party would seek a financial award against the other if the marriage ended. They got divorced, and the husband attempted to avoid the agreement by making a claim against his very wealthy ex-wife by arguing, among other things, that he had not received independent legal advice and that his wife had not disclosed her assets prior to the signing of the agreement, and that he was in need of financial support.

Although prenuptial agreements are not enforceable in England, the court accepted that "the agreement was worthy of note and must be taken into account in the appropriate disposal of [the husband's] claim". In the end, the agreement served to limit the extent of the compensation the husband could receive. In arriving at the conclusion to award him an amount which would allow him to provide a home in which his daughters could visit him until they became adults, the judges stated that "the guiding principle is that of fairness" and that, in exercising discretion in property claims, judges should have "proper appreciation for party autonomy".

In other words, if two adults willingly entered into a contract by which they intended to order their affairs for the future, fairness and justice demand that the court should give decisive weight to the contract.

Transitional nature of the claim

One of the important features of this case to note is the transitional nature of the claim, because it proved to be one of the factors which discounted the husband's claim to ignore the agreement. The court was mindful of the fact that the husband was French, the wife was German and the agreement was signed in Germany. The prenuptial agreement would have been enforceable in both France and Germany, although the claim was made in England because the parties lived there and were more closely connected to that country at the time of their divorce.

Although asserting that it would not apply the foreign law (that is, of Germany or France), the prevailing view of the court was that "the judge should give due weight to the marital property regime into which the parties freely entered". In this case, the prenuptial agreement was given decisive weight.

The husband was granted a further right to appeal, but I have not been able to ascertain the outcome of that action.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.