PRENUPTIAL AGREEMENT THE WAY TO GO
Christopher and Shanette have been dating for three years. Christopher has just completed law school and started practising in the commercial division of a large law firm in the Corporate Area. He wants to be an advocate with a focus on commercial litigation. Shanette, on the other hand, is in her final year in the Faculty of Medicine and will graduate soon. Her ambition is to become a nephrologist.
Christopher's father has already transferred 50 acres of prime seafront land on the north coast and two apartment complexes in the Corporate Area to him. Christopher owns a luxury SUV and lives in a posh apartment with a helper and a butler. Shanette's parents are two of the top doctors in Jamaica and they were shrewd in their investments in stocks and real estate all over the Caribbean and North America. They have already transferred some of their assets to Shanette.
Christopher and Shanette took a bold step in their relationship last week when, on a moonlit night, Christopher asked for Shanette's hand in marriage. After their celebratory dinner with a few friends, Christopher quietly confessed to Shanette that he is thinking of a prenuptial agreement. Shanette was practically relieved to hear that, because she also wants to protect her assets and was thinking about the best way to eventually raise the issue with Christopher.
The concept of a prenuptial agreement presupposes that the marriage might end in a divorce. The major concern for Christopher and Shanette is that this prenuptial agreement expresses their intentions to treat with their existing and future properties and is enforceable.
Prenuptial agreements are provided for in our law in Jamaica. Section 10 of the Property (Rights of Spouses) Act, 2004, (hereinafter called the 'Act') provides an opportunity for spouses or two persons in contemplation of marriage to contract out of the provisions of the Act and make their own arrangements for the distribution of their present and future properties.
The Act provides that the agreement should be in writing, signed by both parties and witnessed by an attorney-at-law or a justice of the peace, but only after each party obtains independent legal advice from an attorney-at-law who is obliged to certify that the effects of the agreement have been explained to the particular party before the agreement was signed. Agreements signed abroad must be witnessed by persons having authority by the law of that country to administer oaths.
Under Section 10 of the Act, the court can review a prenuptial agreement and declare a part or the whole to be void if the parties or a party to the contract did not receive independent legal advice, or if the court is satisfied that it would be unjust to give effect to the agreement.
Although Christopher and Shanette have recently taken their first formal step towards marriage, they planned to get married next June. However, now is the right time to commence their discussion on a prenuptial agreement. It cannot be too soon, as issues relating to property are important to be resolved before marriage.