Marital Agreement / Postnuptial

Marital Agreements

These agreements are made during the marriage and in contemplation of divorce.

During a marriage, parties may enter into several agreements between themselves. When a married couple makes an agreement in contemplation of divorce, this is known as a marital agreement or post-nuptial agreement.

In this article, we will explore the circumstances in which a marital agreement is binding between parties and whether such agreements are enforceable in the Family Justice Courts (the “Courts”).

It should be noted that a marital agreement will primarily have terms that govern the division of matrimonial assets and child(ren) issues.

Marital agreements on division of matrimonial assets

Where a marital agreement pertains to the division of matrimonial assets, it is primarily a question of finances – as such, the court would be inclined towards playing a comparatively minor role.

Preliminarily, section 112(1) of the Women’s Charter provides that when the Courts grants judgment for divorce, the Courts shall have the power to order the division of any matrimonial asset(s) in such proportions between parties as it thinks just and equitable.

In doing so, section 112(2) of the Women’s Charter stipulates that the Court shall have regard to all the circumstances of the case.

As set out in section 112(2)(e) of the Women’s Charter, one such factor that the Court has to take into account when determining the just and equitable division of matrimonial assets is that of “any agreement between parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce.”

Hence, a marital agreement may not be strictly enforceable but will instead be one of the factors that the Court will take into consideration when determining the division of matrimonial assets.

However, the amount of weight that the Court will allocate to a marital agreement will ultimately depend on the precise circumstances of the case. This means that the marital agreement will not bind the Courts, but will indeed be relevant in deciding on the division of the matrimonial assets.

For example, case law has shown that where a marital agreement on the division of matrimonial assets was negotiated in contemplation of divorce with the benefit of legal advice, it would normally be ascribed with significant weight.

Conversely, where it appears that such an agreement was not freely entered into by either party to the marriage, the Court would accord the agreement with little or no weight.

It is only where the parties have reached an agreement on the division of matrimonial assets which they have freely and advisedly entered into, then it is “just and equitable” that the terms of this agreement are adhered to.

Marital agreements on child(ren) issues

Where a marital agreement pertains to issues concerning the child(ren) of the marriage, the Court would be concerned with questions of custody and care and control of a child, and all other issues involving the welfare of the child(ren).

As such, the focus on the welfare of the child is statutorily provided in section 125(2) of the Women’s Charter, which states that when deciding in which parent’s custody or care and control that a child should be placed in, the paramount consideration shall be the welfare of the child.

Therefore, any agreement(s) relating to the custody or care and control of children are unenforceable in the Courts, unless it is clearly demonstrated by parties that are in the best interests of the child(ren) for the Courts to follow the terms in the martial agreement.

As such, the Court will not give effect to the terms of any such agreement unless it is satisfied that to do so would be in the best interests of the child.

A marital agreement is therefore still useful in the event of divorce if properly drafted and entered into fairly.