The Law With MAX  – Prenups – Planning to fail or failing to plan? Prenups – Planning to fail or failing to plan? 

Maxron Holder –
Attorney-at-Law and Lecturer in Law

I cannot begin to tell you the number of times I’ve been asked to draft a prenuptial agreement. This creature of modern love, made famous by countless television dramas, has firmly taken root in our collective imagination as the way to “protect what’s yours.” Whether it’s a family home, a business, or just the little that one has worked hard to build, people are increasingly viewing pre-nups as a practical safeguard rather than a sign of mistrust.

A prenuptial agreement is a contract entered into by prospective spouses before marriage, outlining how their assets, debts, and other financial matters will be handled in the event of a divorce.

In many countries, such agreements are increasingly used as an asset protection tool, particularly where one or both parties bring substantial assets or expectations of inheritance into the marriage.

Historically, prenuptial agreements were viewed with suspicion in English common law, often deemed contrary to public policy because they anticipate marital breakdown. Until the early 21st century, English courts would not give binding effect to pre-marital agreements. However, this changed dramatically in 2010, when the UK Supreme Court held in a decision that such agreements should be given significant weight so long as they are entered into freely by both parties with full appreciation of their implications, and it would not be unfair to hold the parties to their bargain.

SVG, while having its own law, often looks to English legal precedent as highly persuasive. This decision, while not technically binding in SVG, is considered to be “highly persuasive” authority. In practice, this means that SVG courts may respect the terms of a valid prenuptial agreement, provided it meets the legal standards of fairness and voluntariness.

Here’s what you need to know:

1. A prenuptial agreement is not capable of ousting the court’s jurisdiction. Your husband cannot, by private agreement, deprive the SVG court of its ultimate authority to decide an equitable division of assets. The court will always retain the power to adjust the parties’ financial arrangements on divorce, especially to ensure that the needs of each party and any children are met.
2. While not automatically binding, a properly executed prenuptial agreement is considered a “relevant circumstance” to which SVG courts may give due weight.
3. The agreement must have been entered freely by both parties, without coercion, pressure, or misrepresentation. If one party was pressured, the agreement’s weight is greatly diminished or nullified.
4. Each party should provide full and frank disclosure of its financial circumstances before signing. This means revealing all significant assets, liabilities, income, and expectations of inheritance, so that each side understands what rights they may be giving up.
5. Both parties should receive independent legal advice from their own attorneys prior to executing the agreement. Independent counsel helps to ensure that each party understands the terms and effects of the agreement.
6. The substance of the agreement must be fair at the time of the divorce. It should not leave one spouse in a predicament of real financial need while the other is enriched. For example, an agreement that one spouse receives nothing at all, or is left unable to meet basic housing or living needs, is unlikely to be enforced.
7. While the law does not prescribe a specific form for prenuptial agreements, it is advisable that the agreement be executed in a deed or a similarly formal document, signed by both parties (and ideally witnessed or notarised). Ensuring the agreement is formally executed helps later to prove its validity (for instance, to counter an argument that a signature was forged or not duly given).

Always consult a lawyer before signing, or even drafting a prenuptial agreement.