TWO persons contemplating their marriage to each other may enter into a prenuptial agreement or “prenup” to facilitate the settlement of their affairs in the event of divorce or death. Although many might view prenups as planning for failure, others might see not having one as a failure to plan. For example, after a short marriage of two years, reports on the pending divorce of Hollywood stars Ben Affleck and Jennifer Lopez have questioned that couple’s omission to sign a prenuptial agreement. Not having a prenup arguably increases the risk of their independent wealth acquired prior to marriage being pooled and divided. It also creates uncertainty as to the division of property acquired since their marriage, or that will be acquired from the ventures or projects that each of them started during their marriage. Given their usefulness, this article will explore the legal requirements of prenuptial agreements.

In Jamaica, the Matrimonial Causes Act, the Maintenance Act, the Children (Guardianship and Custody) Act, and the Property (Rights of Spouses) Act all contain provisions that touch and concern prenuptial agreements. So, depending on the breadth of the subject matter contemplated in an agreement, the parties to a prenuptial agreement may need to comply with one or more of these statutes.

In the context of the Property (Rights of Spouses) Act, for example, section 10 sets out the prerequisites with which a prenuptial agreement must comply. That is, a prenuptial agreement should:

i. be in contemplation of marriage,

ii. indicate that the parties are contracting out of the provisions of the Act,

iii. identify the property owned by the parties and subject to the agreement (as the provisions of the Act will apply to property not covered by the agreement),

iv. contain a certificate from each party’s legal adviser stating that the party obtained independent legal advice before signing and that the implications of the agreement were explained to the party,

v. be in writing, and

vi. be signed by the parties whose signatures must be witnessed by a justice of the peace or an attorney-at-law if signed in Jamaica, or by one of the persons specified in the Act if signed in a country or state other than Jamaica.

Failure to comply with the statutory formalities regarding independent legal advice and the witnessing of the parties’ signatures shall render the agreement unenforceable. However, even if those formalities were not complied with, the court may declare that the agreement shall have effect in whole or in part for any particular purpose if it is satisfied that the non-compliance has not materially prejudiced the interests of a party to the agreement.

In fact, in a recent decision handed down in July 2024, the Supreme Court exercised its power to uphold a prenuptial agreement that did not comply with all the statutory formalities. In that case, following the death of her husband, which brought their fairly short and childless marriage to an end, a widow brought an action against the executrix of the late husband’s estate to restrain the issuance of a grant of probate and the administration of his estate. The late husband’s will devised his properties to his children born prior to the marriage. In defending the action, the late husband’s executrix asserted that the widow had no interest in the estate and sought a declaration that the parties’ prenuptial agreement should have effect in whole. The prenuptial agreement in question recorded the parties’ intention that neither of them could claim the properties independently acquired prior to the marriage. While the widow agreed she had executed the prenuptial agreement, she challenged it on numerous bases including that she had not received legal advice prior to signing and that it had not been witnessed by a justice of the peace. Despite the agreement’s non-compliance with the legal formalities, the court found the parties were on equal footing as neither had obtained independent legal advice and the agreement did not prejudice the widow’s property.

Separate from non-compliance with formalities, a prenuptial agreement shall also be unenforceable if the court is satisfied that it would be unjust to give effect to the agreement. In assessing whether it would be unjust, the court has regard to:

(i) The provisions of the agreement,

(ii) The time that has elapsed since the agreement was made,

(iii) Whether the circumstances that existed at the time the agreement was made render it unfair or unreasonable,

(iv) Whether the changes in circumstances since the agreement was made render it unfair or unreasonable

(v) Any other relevant matter, such as, for example, the needs of any relevant children of the marriage and the duration of the marriage.

While the court has the power not to give effect to a prenuptial agreement, parties who freely and voluntarily enter into a contract, prenuptial or otherwise, will not ordinarily be allowed to depart from that contract without showing good reason. As illustrated by the recent case, a prenuptial agreement may protect property that a person intends to pass to someone other than their spouse. Prenuptial agreements are also often made before the relationship breaks down when, in contrast with after, reasonableness tends to outweigh emotion. It is imperative that any person desirous of entering into a prenuptial agreement first consult a lawyer as an agreement made without obtaining legal advice is more susceptible to being rendered unenforceable.

Jacob Phillips is an Associate at Myers, Fletcher & Gordon. He may be contacted via jacob.phillips@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.