This article seeks to respond to an email which queries the legal effectiveness of a prenuptial agreement in Barbados.
From my experience, it appears that interest in prenuptial agreements is increasing, especially among parties contemplating a second or later marriage who wish to preserve their property for their children from an earlier marriage or union. Increasingly, those about to enter into a first marriage are also making similar queries.
A prenuptial agreement may be defined as an agreement between a man and woman entered into before marriage which seeks principally to regulate their financial obligations towards each other during the marriage and in the event of a breakdown of the marriage.
Prior to amendments to the Australian Family Law Act about 15 years ago their courts had consistently held that no agreement can preclude the Court from exercising its powers under section 79 of the Family Law Act (our Section 57) or can prevent a party to a marriage from invoking the powers of the Court under that section.
Put another way, notwithstanding what agreement may be reached between the parties, the Court can still exercise its powers with respect to property settlement and alter interests in the property of the parties.
Section 57 (1) and (2) of our Family law Act provide: “(1) In proceedings in respect of the property of the parties to a marriage or union, or either of them, the court may make such order as it thinks fit altering the interests of the parties in the property, including (a) an order for a settlement of property in substitution for any interest in the property; and (b) an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage or union, such settlement or transfer Of the property as the court determines.
(2) The court shall not make an order under this section unless it is satisfied that in all the circumstances, it is just and equitable to make the order.”
The above section grants the High Court a wide discretion to alter the interests of the parties in property provided that in all the circumstances it is satisfied that “it is just and equitable to make the order”.
It is submitted that our law with respect to prenuptial agreements is substantially the same as that which prevailed in Australia prior to their amendments. Prenuptial agreements are, therefore not binding upon the Courts.
In the Family Law Act, however, there is provision for maintenance agreements, which if approved by the Court, are binding upon the parties.
Section 2 of the Family Law Act defines a “maintenance agreement” in the following terms “an agreement in writing made whether before or after February 1, 1982, between the parties to a marriage, being an agreement in respect of financial matters, whether or not there are other parties to the agreement, and whether or not it provides for other matters, and includes any such agreement that varies an earlier maintenance agreement.”
Even though prenuptial agreements do not oust the jurisdiction of the courts, they can still be some value. For one thing, they can document the ownership property and the intentions of the parties at the time of the execution of the agreement and can be a very useful source of evidence in a property application.
For another, the court can in fact make an order in terms of the pre-nuptial agreement if it considers that in all circumstances it is just and equitable.
The recent trend in England has been to give effect to such agreements where the parties have had independent legal advice and in all the circumstances it is consider fair to give effect to the agreement. Once children are not disadvantaged and the provisions of the agreement are otherwise fair I see no reason why in appropriate cases why such agreements cannot be upheld here.
Some parties may also choose to stand by their prenuptial agreement and may accept an order by consent giving effect to the terms agreed or may simply choose to obey them without any need for approval or intervention by the court.
In my view, prenuptial agreements are therefore not without value. However, parties entering into such agreements should be aware of their limitations under the current law.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael.