Pre-Nuptial Agreements

Introduction
One of the primary focuses, when a marriage breaks down, is ensuring that each spouse is sufficiently protected. Pre-nuptial agreements are often used by couples when attempting to secure protection. Such agreements outline how assets are to be divided upon divorce or separation, they can also provide for further arrangements including child custody.

Status in Ireland
At present, pre-nuptial agreements have no legal status in Ireland, thus are not legally binding. Therefore, upon dissolution of a marriage, a judge is not required to follow the terms within the agreements, however, they may consider the agreement in light of the divorce or separation order. If spouses have made a pre-nuptial agreement, often the judge will give the agreement consideration and it may influence their decisions within the order. However, it is important to note that this power is purely at the discretion of the judge and therefore is not an obligatory duty.

Why make one?
Despite the lack of legal standing toward pre-nuptial agreements, couples are still entitled to make them. As previously noted, upon separation or divorce, a judge may merely take into consideration the contents of the agreement, if they wish. Many couples still opt to create a pre-nuptial agreement as it can provide security. For example, such an agreement can be useful in a second or subsequent marriage, where a spouse wishes to keep certain assets separate.

The likelihood of such agreements being considered are influenced by a several factors, including:

• Ensuring that proper provision is followed for all dependent persons, including spouses and children;
• Both parties have engaged in independent legal advice;
• Full disclosure of all assets;
• The agreement is written, and signatures are witnessed;
• Both parties enter into the agreement without duress or pressure;
• The agreement is reviewed periodically or if there are any significant changes to assets.

Developments
The future of pre-nuptial agreements is uncertain, as numerous recommendations to enforce a legal status on them have been ignored. At present, if agreements were automatically enforced, it could be considered unconstitutional, as the Constitution provides that proper provision must be made for all dependent persons. Thus, an amendment may be required to ensure no ambiguity arises. Furthermore, it was considered that giving legal status to pre-nuptial agreements may encourage marital breakdowns, however a shift from this reasoning has diverged.

In 2007, a Ministerial Study Group carried out extensive research and recommended that pre-nuptial agreements should be legislated for. They noted that divorce laws should require the courts to consider pre-nuptial agreements but that agreements are not automatically enforceable.

Speak to our family law team
If you would like more information on Pre-Nuptial Agreements, please contact our team who can advise you further and explain your options.

Should you wish to discuss Pre-Nuptial Agreements or any of the above , please contact Niamh Walsh or anyone in our Family Law team for more information.