The slew of negative publicity which has emerged since Tiger Woods' accident has not gone unnoticed by Jamaicans, nor his apology to his family for his transgressions, and the purported amendment of his prenuptial agreement. In fact, one reader was curious to know whether it was appropriate to renegotiate a prenuptial agreement, since the marriage occurred in 2004.

As I am not competent to offer advice on United States (US) law, I must relate Tiger's case to the Jamaican experience within the context of our Property (Rights of Spouses) Act. For the purpose of this article, further assumptions must also be made regarding the contents of the prenuptial agreement, and that Tiger's wife Elin, plans to separate from the marriage.

Tiger could have entered into an enforceable prenuptial agreement in Jamaica. That is, he and his wife could have signed a contract in contemplation of their marriage and made agreement with respect to the ownership and division of their property (even future property) on such terms as they thought fit. Therefore, as reported in the press, they could have agreed that, if they separated after 10 years of marriage, Elin would be entitled to receive US$20 million in settlement.

Settlement sum

An agreement in those terms may mean that, if the couple separated after only six years, she would not be entitled to receive the US$20 million. However, the agreement may include other terms which outline that she is entitled to a lesser amount.

The recent reports that Elin was offered US$5 million to remain in the marriage, an increase in the settlement sum to US$25 million and an adjustment to state that the payments may be made if they separate after seven years of marriage, sounds like major changes. The question is whether those changes would be permitted under Jamaican law.

Unlike jurisdictions, such as the US and Australia, which make specific provisions regarding amendment and revocation of prenuptial agreements, the Property (Rights of Spouses) Act contains no such provisions. There is no statement as to the circumstances in which prenuptial or settlement agreements may be amended or the conditions which must be satisfied for such changes to be effective.

One may argue that, since the prenuptial agreement is a contract, the mutual agreement of the parties should be effective to amend or revoke it. Therefore, if the agreement itself makes provisions regarding amendments, and if those provisions are followed, then amendments to the agreement may be enforceable.

As an alternative, a new settlement agreement could be executed in accordance with Section 10 (1) of the act, for the purpose of "settling any differences that have arisen between them concerning property". This settlement agreement could effectively take the place of the prenuptial agreement, and the parties could agree to be bound by the terms of the new agreement.

A further alternative would allow Elin to take her chances before the court relying on Section 10 (7) of the act. The argument would be that although the marriage has come to an early end, it would be unjust to enforce the terms of the prenuptial agreement on grounds, such as changes in circumstances or unequal bargaining power between the parties. The birth of the children could be cited as one of such circumstances.

The ideal scenario in Jamaica would certainly be one in which the Property (Rights of Spouses) Act clearly outlined the circumstances in which prenuptial or other agreements could be amended, and the conditions which must be satisfied for such changes to be valid. However, until there is judicial determination as to the manner in which proposed changes are to be handled in Jamaica, we could ensure that the prenuptial agreements which we draft contain clauses which speak specifically to the conditions which must be satisfied for them to be amended.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.