The subject of prenuptial agreements always makes interesting conversation for varied reasons. The first emotional debate usually surrounds the fact that the agreement seems to presume that the marriage is likely to end in divorce. Quite often, persons who are contemplating signing them want to know whether they will stand up in court; because they are concerned that it makes no sense to spend time and money to draft and execute prenuptial agreements that can be set aside.
Most lawyers will advise you that if you adhere to the provisions of section 10 of the Property (Rights of Spouses) Act, you should have a sound prenuptial agreement. That is to say, if the agreement is in writing, signed by both parties and witnessed by an attorney-at-law or justice of the peace after each party obtained independent legal advice from an attorney who certifies that the effects of the agreement were explained to the client before the agreement was signed, it should be enforceable. However, section 10 makes it clear that there is room for the court to review the agreement and declare it to be void in whole or part if it is found that it would be unjust to give effect to the agreement.
Although the legislation are different, the outcome of a recent decision from the Brooklyn appellate court in the case of Petraikis v Petraikis may be a foreboding to the manner in which a Jamaican court may treat a prenuptial agreement. In that case, a wife successfully set aside a prenuptial agreement on grounds that she was fraudulently coerced into signing it.
According to the online reports, four months prior to the wedding, the wife refused to sign the agreement. Wedding plans proceeded and more than US$40,000 was spent by her parents. Four days before the planned nuptials, the husband threatened to cancel the wedding if she did not sign the prenuptial agreement. The husband sweetened the deal by telling her that he would rip up the agreement after they had their first child and that he would put her name on the title for their home, so the agreement was signed.
The marriage produced three children before it ended. As the verbal promises were never fulfilled, the prenuptial agreement could be relied on by the husband to say that the wife would receive a settlement of US$25,000 for each full year of the marriage. The wife was not satisfied with that result and, after a seven-year legal battle and 13 days of trial, the court ruled that the prenuptial agreement could not stand.
This judgment is a surprising one because I have not seen many reports of prenuptial agreements being set aside. Moreover, one may ask why the verbal promises made by the husband were not included in the agreement which was eventually signed by both parties.
Despite any criticisms of the judgement, the word of caution is unmistakable. Couples who are contemplating signing prenuptial agreements should commence that discussion well before the wedding date, and take care to ensure that the agreement contains all of the mutually exchanged promises which caused each party to sign it. Further, there must be commitment by both parties to fulfil the promises they make.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to email@example.com or firstname.lastname@example.org
Couples who are contemplating signing prenuptial agreements should commence that discussion well before the wedding date