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Prenuptial Agreement

“I, ____, take you, ____, to be my lawfully wedded husband/wife, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.”
 
This vow illustrates that most of us grew up with the belief that a marriage is meant for life (hence the words “until death do us part”). However, the harsh reality is that marriages – as happy as the couple may seem for outsiders – can end when one of the spouses decides to file for divorce due to various reasons. 
 
The Civil Code of Sint Maarten stipulates that the moment two people enter into a marriage, they marry into a community of marital property by law, unless they enter into a prenuptial agreement. A prenuptial agreement is an agreement in which spouses may deviate from the standard regimen of marriage into community of marital property. There are three forms of prenuptial agreements:
 
1.      Cold exclusion (“koude uitsluiting”): The spouses agree that there is a strict separation of each other’s assets and debts. In other words: what’s hers is hers, what’s his is his.
 
2.      Partial exclusion of goods (“beperkte gemeenschap”): The spouses agree which part of their goods form a community of property and which do not. 
 
3.      Setoff clause (“verrekenbeding”): Based on this clause, each spouse retains his/her personal assets, but the necessary finances have to be settled amongst themselves. Two setoff clauses can be categorized: 

 

-          Periodical setoff clause (“periodieke verrekenbeding”): In the case of a periodical setoff clause, the setoff must always take place after the expiry of a specified period. This is often after each year. What must be settled depends on the contents of the matrimonial contract. For example; 
during the marriage, the annual income of both spouses will be set off after the household expenses are deducted. The spouses are entitled to 50 percent of the remaining income. So if spouse A has an annual income of 
US $80,000; and spouse B has an annual income of US $40,000; the total annual income is US $120,000. If the annual household expenses are US $30,000; then the total net income amounts to US $90,000. Spouse A and spouse B are entitled to 50 percent of the remaining amount, which is US $45,000. If each of the spouses receives his/her individual income on separate bank accounts, and each of the spouses pays 50 percent of the household expenses during the year, then the remaining income of spouse A amounts to US $65,000; and the remaining income of spouse B amounts to US $25,000. Based on the periodical setoff clause spouse A has to pay spouse B an amount of US $20,000. 
 
-          Final setoff clause (“finale verrekenbeding”): Each spouse retains his/her personal assets. The spouses settle at the end of the marriage as if they had been married in community of property. As a result of this, ultimately the value of the total assets is divided between the spouses, but not the assets themselves. For example; a couple decides to divorce. If spouse A has assets with a value of US $50,000 at that moment; and spouse B has assets with a value of US $10,000; the spouses can settle it as if they have been married in community of marital property. This means that each spouse is therefore entitled to 50 percent of the total asset value (which is US $30,000 per spouse). Based on the principle of the final setoff clause, spouse A has to pay US $ 20,000 to spouse B.
-           
A prenuptial agreement in a hybrid form of the three abovementioned categories is also possible, as each couple may have specific needs, and their own reasons for the conditions. 
 
Many people consider a prenuptial agreement as an immediate sort of “romance killer.” How can you and your spouse plan the wedding, but at the same time discuss an agreement in which you both stipulate conditions to safeguard each of your assets? A prenuptial agreement is more than just an agreement to safeguard your own assets; it is also a way to prevent your spouse – who you love dearly – to become implicated or liable for a debt that you made with a creditor. 
 
At the very least, couples are forced to discuss their financial assets, position and expectations, especially if i.e. you already own a (family) business or inherited a valuable asset from your late father/mother before entering into the marriage. A discussion of a prenuptial agreement is appropriate if one of the spouses would like to keep those assets in the family, or separate, instead of having it merged into a community of goods.
 
Even though no person – one can hope – enters into a marriage with the possibility of an eventual divorce in his/her mind, we cannot deny the fact that situations can change, including your spouse unfortunately. 
 
Not many people who once were married can tell you how “wonderful” or “beautiful” their divorce was, as most divorce procedures come along with emotional stress and disappointments. Sometimes it occurs that spouses file for divorce together; but in most cases, one spouse decides to file for divorce and the other spouse automatically feels like he/she is the “victim.” From that moment, the “unfair” distribution of their assets starts, along with the escalating arguments and accusations against each other. The situation intensifies when the divorce procedure is lengthy and the invoices for lawyers constantly increase, before a judge is even able to decide which of the ex-spouses will get the house, the dog, the car, the fork, the spoon, etc. 
 
Taking this into consideration, a prenuptial agreement might not seem to be the most romantic aspect of your marriage, but – in the worst case scenario – it can at least help you undergo a possible divorce a little bit more smoothly and quickly after your spouse decides that he/she does not want to stay married “happily ever after.”
 
Please note that the content of this article is general in nature and intended strictly for informational purposes.
 
By Luciano M.G. Dundas, attorney at law and associate at BERMON 
 
LAW OFFICE & LEGISLATIVE SERVICES
Front Street 6, Suite 3, Philipsburg, Sint Maarten
Tel: (+1721) 542-5088/542-5074/543-7827/542-3558
Fax: (+1721) 542-5087
Email: 
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www.bermon-law.com 
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