The provisions of the Property (Rights of Spouses) Act have given force and legal effect to prenuptial agreements which have long been considered to be contrary to public policy and unenforceable at common law.

The 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-at-law must certify that he or she had advised the client of the implications of signing the agreement. In addition, the agreement must be:

If the agreement does not satisfy these criteria, there is a saving clause. The entire agreement, or parts of it, may be upheld by the court if it is found that the 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 party attempts to get out of 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 or maintenance, there should be no need to have that agreement reviewed by the court for it to take effect.

Be cautious

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.

The act provides for parties contemplating marriage or cohabitation (that is, a conjugal relationship outside of marriage) to enter into prenuptial agreements. It also provides for agreements to be made between spouses who are attempting to settle differences which have arisen concerning ownership or division of their property; and the Maintenance Act provides that the same arrangements can be made regarding maintenance.

The Act does not state that these are the only circumstances in which agreements may be signed. It is, therefore, my view that an agreement between spouses, who have no differences during the course of their marriage or cohabitation, which sets out the manner in which they wish to divide their property or settle maintenance on separation may be enforceable, provided it is prepared and executed in accordance with the provisions of the Act.

One major concern is that, even after parties have made the effort and taken the time to enter into what they believe to be an enforceable contract, the court may determine that the provisions of the agreement are not reasonable and should not be upheld. Factors such as the length of the marriage or relationship, the absence of adequate provisions for children and change in the parties' circumstances may be catalysts for such orders.

In fact, in a 2008 Privy Council decision from the Isle of Man (MacLeod v LacLeod), the Law Lords found that the post-nuptial agreement should not be upheld in its entirety. However, it was clearly stated that the only principled reason for interfering with the agreement was the fact that there was no adequate provision for the couple's children. Other proposed factors, such as inadequate provision for the wife, were not found to be an appropriate basis upon which to do so.

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