5 reasons why every young couple should sign a prenup

“If you ain’t no punk holla, ‘We want prenup. We want prenup, yeah!’” — Kanye West in Gold Digger

RARELY do young couples who are in the throes of love and considering marriage stop to consider the fact that at least half of marriages end in divorce, which is often followed by years spent arguing over the division of property. Many young, newly engaged couples scoff at the thought of divorce. They presume that it will never happen to them because of the deep affection they have for each other; and although they hope their marriage will remain strong, many times it does not.

It is a reality that people change, grow apart, and want different things. Rarely do I encounter reasonable divorcées. There is a thin line between love and hate, so often people become vindictive, even at the expense of their children.

Prenuptial agreements may not sound romantic, but they state which assets will remain individual property and which will be shared. Do not under any circumstance think that you know for a fact that you and your partner can simply ‘talk about it’ when you are going through a divorce. Such a conversation seldom occurs. As stated above, rationality usually goes out the window.

Below are, in my professional opinion, five very persuasive reasons why young people should earnestly consider signing a prenuptial agreement before jumping the broom.

1. ‘Pre’ is better than ‘post’

I have met many married couples who come in for postnuptial agreements. There is nothing wrong with that because people are more reasonable during the marriage than the divorce; however, this is more likely to cause a rift in the union as it is often done when one partner has become more financially successful than the other. The Equal Share Rule mentioned in the Property (Rights of Spouses Act) entitles each married or cohabiting spouse to a one half share of the family home, and often spouses refuse to do this and think the postnuptial agreement can change what the Act says. It cannot. The court has the power to vary the Equal Share Rule, but it does not often do so. Nevertheless, if you are already married there is nothing wrong with having a sensible conversation with your spouse and then asking your family lawyer to draft a postnuptial agreement.

2. Preserve original intention

Prenups in Jamaica deal with property you have before your marriage and future property if you wish to address it. It is easier to show the court your original intention with your property when you have the agreement signed by both parties.

3. Protect your children and save money

Many people going through divorces complain about how long the division or property process takes. When you have a prenup you do not waste time in the court system waiting for the judge to tell you what is logical, since you would have both already agreed. This makes life easier for the children of the marriage and saves both parties a significant amount in legal fees. Also, if you have children from a previous relationship, you can address this in the prenup and preserve property for them.

4. Protect your changing finances

If you wish to refer to future property in the agreement, you do not have to split 50-50. You can state that the assets remain with who acquired it. It can also help to protect any expected inheritance of one spouse. Again, bear in mind that this will not apply to the matrimonial home. See number 1.

5. Protect yourself

My grandmother always says to “hope for the best but prepare for the worst”. It is not about being selfish; it is about being smart. There are many things you may want to share with your spouse, but there are also some things you want for yourself. We all want to be married forever, so this is why we say the vows. However, the reality is different. A prenup will give you peace and clarity of mind should the worst happen.

Please note that the court still has the power to invalidate pre and postnuptial agreements if one party did not have counsel or believes that the other had some other unfair advantage, and the court believes that enforcing the agreement would be unjust.

Sashakay Fairclough is a barrister and attorney-at-law.