Sherry-Ann Mcgregor, Contributor

Mcgregor

Prenuptial agreements have legal force in Jamaica by virtue of the Property (Rights of Spouses) Act. For this reason, persons contemplating marriage or cohabitation have the right to determine the manner in which they wish to divide their property in the event of death or separation.

Many persons would believe that, because we owe so many of our legal traditions to England, the treatment of prenuptial agreements is another of those instances in which we have merely adopted the English position. However, this is not so. In fact, much discussion has resurfaced in England regarding prenuptial agreements since the Paul McCartney/Heather Mills case was concluded.

Crossley v Crossley

There is a very interesting English case dating back to December 2007 in which one English judge decided to uphold the terms of a prenuptial agreement, despite the fact that the necessary legislation is not yet in place to accommodate it.

In the case of Crossley v Crossley, the wife and husband met in June 2005 and became engaged in September. They then had extensive discussions with the assistance of experienced lawyers, to settle the terms of a prenuptial agreement. At that time, the husband had declared his fortune to be £45 million and the wife said hers was £18 million.

The parties were married in January 2006 after agreeing each party should walk away with whatever they brought into it, and that neither would apply to the court for any financial provision. By March 2007, they separated and the wife petitioned for divorce in August 2007.

Contrary to the prenuptial agreement, the wife immediately applied for financial provision from her husband. In those proceedings, the wife argued that the husband had understated his wealth at the time of the prenuptial agreement and the husband countered by stating that a short, childless marriage in which both parties were independently wealthy, should not result in any adjustment of the agreement.

Magnetic importance

The judge was of the view that, although the prenuptial agreement was not directly enforceable, it was "a factor of magnetic importance" in determining the issues between the parties. In fact, the judge specifically stated that the time had come for England to enact legislation to give due recognition to prenuptial agreements.

As it turns out, the wife was a professional divorcee, whose fortune had been amassed after three substantial divorce settlements. The fourth attempt failed, despite the fact that she discovered that her husband had concealed more than £60 million of his fortune at the time the prenuptial agreement was signed.

After reading a case of this nature in which the judges were constrained to dig deeply to achieve the end which justice appeared to demand, Jamaicans may be comforted to know that such an effort would not be necessary if the case was to be decided here. However, wherever there are areas of our law which are in dire need of reform, it is important for us to address them and leave it to our judges to interpret, and not attempt to make laws.

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