Marital Agreements (Maintenance and Cohabitation Agreements; Ante-nuptial and Post-nuptial Agreements)

• Pages: 299-318

CHAPTER 12

MARITAL AGREEMENTS

(maintenance and cohabitation ag reements;

ante-nuptial and post-nuptial agreements)

PART ONE

MAINTENANCE AGREEMENTS

1. MAINTENANCE AGREEMENTS DEFINED

A maintenance agreement is an agreement in writing made between parties to a marriage,

including, in the case of Barbados, Jamaica and Trinidad and Tobago, between cohabitants,

voluntarily entered into containing financial arrangements made during the continuance or

after the termination of the marriage or cohabitation, as the case may be. The provisions of a

maintenance agreement are not limited to financial support but include the making and secur-

ing of payments or the disposition or use of any property, and where there are children

involved, the maintenance and education of any child of the family.

Maintenance ag reements are also called separation ag reements as the provisions

contained in the maintenance agreement are essentially the same as those contained in a sepa-

ration agreement and are entered into and take effect when parties decide to live separate and

apart. Indeed until the passage of the MCA 1857, England, separation was the only option

available to parties wishing to bring the marital relationship to an end as a civil divorce was not

available until the 1857 MCA came into operation, hence these agreements were in all

instances, previously called separation agreements. For the purposes of this chapter, mainte-

nance agreements will also include and refer to separation agreements, and in the case of

Jamaica, it also includes property agreements.

Maintenance agreements are often the preferred route to the alternative of the more

expensive, adversarial financial support ancillary relief proceedings and in fact the courts,

consistent with the move away from the matrimonial offence divorce model, encourage parties

to reach agreement wherever possible, and in so doing, save time, legal costs and the bitterness

often associated with the breakdown of a marriage.

While maintenance agreements are entered into for purposes of separation, where parties

subsequently decide to divorce, they may incorporate the terms of such agreement into the

decree nisi in full and final settlement of all ancillar y relief matters. The agreement so incorpo-

rated takes and is given effect to as an order of the court made pursuant to ancillary relief

proceedings.1The terms of the ag reement, which are usually embodied or incorporated into

the decree nisi, remain valid and subsist even though not formally embodied in the decree

absolute order2a and as is the case with any court order, it is subject to contempt proceedings,

in the event of non-compliance.3

1 See Summer v Summer BS 1990 SC 36.

2 See Scott v Scott et Al BS 1989 SC 87; Jarrett v Jarrett JM 2000 CA 32.

3 See C v A BS 2011 SC 163; Haynes v Haynes BB 1985 HC 9; Scott v Scott et Al BS 1989 SC 87.

The cohabitation ag reement – Barbados and Trinidad and Tobago

The cohabitational agreement is similar to the maintenance ag reement entered into between

married persons, but is made either by a man and woman who intend to cohabit or are cohab-

itants or a man and woman who were in such cohabitational relationship with respect to their

maintenance obligations, interest in and division of property and any other matter in the settle-

ment of their affairs. It is to be noted that where the parties to the cohabitation agreement

subsequently marry each other, the agreement becomes unenforceable.4

Jamaica – separately considered

The maintenance agreements which apply to both married spouses and cohabitants are

governed by the Maintenance Act 2005, (MA) which became law in December 2005 and by

the Property Rights of Spouses Act 2004 (PROSA) which became law in April 2006. The posi-

tion in Jamaica will be examined separately below, because of substantial differences with

respect to the enforceability and validity of such agreements as compared to the statutory posi-

tion in the other CC jurisdictions. Accordingly all references to the CC jurisdictions or other

CC jurisdictions in 2 to 8, below do not include Jamaica, unless otherwise expressly stated.

2. COMMON LAW POSITION – Antigua and Barbuda, Belize, Guyana,

Montserrat, St Kitts and Nevis

Maintenance agreements were, and in the case of the above-mentioned jurisdictions, are still

completely governed by the common law. In accordance with common law principles the

agreements, which are called separation agreements in these jurisdictions, are given full effect

to as is the case with other contracts. As Atkin J. observed in Hyman v Hyman, with reference to

maintenance agreements, “T hey are for med, construed and dissolved and to be enforced on

precisely the same principles as any commercial contract.”5

There was however until the late 19th century, a clear division of opinion as to whether

such agreements were valid in law, and even as late as the House of Lords’ decision in 1929 in

Hyman v Hyman, Lord Atkin observed that “a perusal of some of the cases in the matrimonial

courts seem to suggest that at times they are still looked at askance and enforced grudgingly.”6

In Hyman, Lord Atkin briefly traced the history of the law’s acceptance of separation agree-

ments. He noted that separation agreements were a class of documents which had a chequered

career at law, not recognised by the ecclesiastical courts; enforced by the common law; frowned

down by equity until they were fully recognised by equity in Hunt v Hunt7following the deci-

sion of Lord Cottenham in Wilson v Wilson.8

In Wilson v Wilson, the House of Lords upheld an agreement of the spouses to live apart

to be a valid contract and decreed specific performance of its covenants, overruling earlier

cases and holding that while a voluntary separation was an offence against the ecclesiastical

law, it was not one against the common law and that there was no public policy grounds, as

300 Commonwealth Caribbean Family Law

4 Pursuant to s.65, FLA CAP.214 Barbados; s.25(2), CRA Chap.45:55, Trinidad and Tobago.

5 [1929] AC 601, HL at 625.

6 Ibid.

7 4 de G.F.& J 221.

8 1848 1 HLC 538.