The Matrimonial Causes Act (MCA) in Section 72(2) recognises the right of parties to execute prenup and post-nuptial agreement (a post-nuptial agreement is entered into after the marriage and in most cases, during the course of a divorce proceeding). Though the court has discretion on the enforcement of pre or post-nuptial agreements with respect to the allocation of property in the event of a divorce, experience has shown that the court readily enforces post-nuptial agreements[15]. The same approach would apply to prenup, in view of the fact that court is mandated to take into consideration any prenup made by the parties for settlement of properties[16].
[15] In view of the fact that the court hardly questions post-nuptial agreements entered into during the course of proceedings, it is advisable for couples to enter into such agreements to avoid lengthy and expensive divorce process. However, prenups are more advantageous in that at the time of contracting same, emotional and sentimental feelings of hurt which normally stand in the way of post-nuptial agreements would be absent. From experience, parties hardly agree on anything after the marriage breaks down.
[16] The MCA refers agreements entered into between the parties before or after marriage. In some sections it is termed ante-nuptial or post-nuptial settlement. See sections 16 (1) (f), 19, 72 (2), 73 (1) (k) of the MCA.
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