In a precedent-setting case, the Supreme Court of The Bahamas has ruled in favour of a prenuptial agreement, dismissing an ex-wife’s plea to toss out the contract signed prior to marriage and affirming the husband’s right to keep assets he held prior to the marriage.
Chief Justice Sir Michael Barnett issued the ruling in a highly-detailed 24-page opinion climaxing a six-year long battle that had weaved its way through the court system amassing thousands of pages of documents and untold hours of hearings, pleadings and proceedings.
“This is the first real test of a pre-nuptial agreement in a Bahamian court and it is a major victory for the protection of pre-marital assets,” said Nerissa Greene, partner at Halsbury Chambers and the successful attorney. “The Chief Justice’s ruling reaffirms the validity of an agreement signed by two people exercising individual rights when heads are cool and no one is mired in the emotional heat of battle as often happens following a break-up.”
In his ruling, Supreme Court Chief Justice Michael Barnett did not excuse the husband from financial responsibility, awarding the ex-wife assets gained during the marriage while keeping the contract signed prior to the wedding intact.
“…the Wife had a choice,” the Chief Justice wrote. “He (the husband) wanted to protect his assets and the wife was fully aware on advice exactly what she was doing when she signed the prenuptial agreement.”
“Chief Justice Michael Barnett’s decision is thoughtful, comprehensive and very clear in its meaning,” said attorney Greene. “In simplest terms, this is a very big case and a very important decision.”
Ms. Greene has long been considered the leading proponent of prenuptial agreements, believing they are the equivalent of marital insurance policies, protecting assets whatever the weather, guarding that which was individually owned prior to the union regardless of how stormy the conditions within the marriage become or its dissolution.
“We go down the aisle saying, ‘Yes, I do,’ but after the heat of the moment cools and love fades, you have to be prepared for the reality that follows and that means being able to protect yourself,” explains Greene. “What you brought to the marriage is your pre-marital asset and that is what should remain yours along with any earnings, interest, dividends, appreciation or other gain deriving from it should you so wish.”
A popular speaker and panelist as well as a recognized civil litigation and family practice lawyer, Greene has repeatedly said that prenuptial agreements are not merely created to “protect what’s mine” but to “protect what’s ours, agreeing to a fair and equitable division of assets before tempers boil and emotions roil.” Under current law, courts are able to use prenuptial agreements to infer wishes, but are not bound by them. The recent decision is expected to move the courts toward acceptance of pre- or postnuptial agreements just as they accept a separation agreement now.
“We sign contracts for insurance and for other important matters,” said Greene. “What could be a more important contract than promising a level-headed and fair, mutually agreed upon disposition for the welfare of offspring and the protection of assets, individually and jointly held?”
The English legislature is set to decide the fate of similar agreements in 2012, said Ms. Greene, who graduated with honors from the University of Keele in Staffordshire, England and was called to the Bar of England and Wales, and the Bar of The Bahamas in 2001, as well as to the New York Bar in 2004. “But the Chief Justice’s decision spells out in very clear and concise terms that a prenuptial agreement entered into voluntarily and with full knowledge carries the weight of any contract between two persons and as such is to be treated as a contract would be.”
A member of the Honourable Society of Middle Temple and an active member of the Civil Society, Ms. Greene joined Nassau-based law firm of Halsbury Chambers in 2003 and was named a partner five years later.
By Diane Phillips
