Prenuptial Agreement Jamaica

Till death do u part. That is how most of us would prefer our marriage to end, but unfortunately, that is not the case.  Several divorce and separation end with spouses fighting over everything from custody of children to pets.

Before delving into the discussion of prenuptial arrangements, it is important to establish the definition of spouse under the laws of Jamaica. Spouse in Jamaican law is not confined to a man and a woman who are legally married to each other. It also includes a single man and a single woman who has cohabited together as man and wife.T hey must cohabit for a period of at least 5 years.

When marriages break down and there are issues regarding division of properties, the court would rely on the Property Rights of Spouses Act (PROSA) and case law to determine who is to get what and at what percentage.

The piece of legislation starts by giving both spouses equal share in the family home under Section 6. This, however, is subject to certain circumstance such as:

1. the family home was inherited by one spouse;
2. (b) that the family home was already owned by one spouse at the time of the marriage or the beginning of cohabitation;
3. (c) that the marriage is of short duration.

Therefore, where there is no other contractual arrangement the law will determine how the properties and assets are divided. This is similar to what happens when a family member dies without leaving a will.

Are Prenuptial Agreements Recognized in Jamaica

A few years ago there were questions as to whether the laws of Jamaica recognizes Prenuptial agreements. The short answer to this is yes.

While PROSA doesn’t use the terms “Prenuptial Agreement” (which is an American term”), it does make provisions under Section 10 for Spouses to may make a contractual arrangement as to how their properties and assets should be dealt with in the event of separation, death or divorce.

The prenuptial agreement should, however, follow certain guidelines for it to be considered by the court. It must be made in writing, signed by both parties and witnessed by a JP or an Attorney. Both parties have of course, must receive independent legal advice on the Agreement prior to signing.

One should also bear in mind that the said Section 10 gives the court the authority to review the agreement. This is to determine whether its enforcement would be unjust. It is therefore in the interest of the party whose idea it was to draft the agreement to ensure that it does not come across as grossly unfair and unjust.

Like any other contract, the court would declare it to be void or voidable if it is made under duress. No party to the contract, therefore, must be forced into signing the agreement. For instance, if both parties have invested heavily financial in the wedding and the day before and one party suggested if the other does not sign the prenuptial agreement before the wedding day, the wedding would be.

Another factor to bear in mind is that the parties must get sufficient to look at the document and have their independent attorneys explain the legal consequences of the agreement.

The truth is marriages are not certain and the recognition of a preputial agreement by the court is not certain either, so the two should be carefully considered.