Prenuptial Agreements – the benefit and burden of them

Question: I am a thirty two year old man. I am engaged to be married. I farm 130 acres of land, which was transferred by my parents to me four years ago. Although i do not anticipate that my future wife and i will separate , i am wondering if there is some way i can protect the family farm in the unlucky event that our marriage does break down.could this be done by means of a pre-nuptial agreement and if so, what is involved in it?

Answer: The romantics would say that you should marry for love and work for money. The idea of asking a future spouse to sign an agreement prior to the marriage, which seeks to fix the terms of a possible separation or divorce in advance , should the marriage fail, could be interpreted as a lack of trust on your part by your future spouse. After all most people prefer to walk down the aisle in the hope and belief that it is for life.

However, for all the promises that are made, marriages do breakdown and with the advent of legislation such as the Judicial Separation Act of 1989 , and in recent years Divorce, couples do now more readily separate , some divorce and in some cases move on with their lives and into second relationships and second marriages.

No doubt about it in Irish law, a marriage breakdown can have very serious long term financial consequences. Therefore, is it not only natural that one or both parties to a marriage would want to protect their assets in the event of an irretrievable marriage breakdown? After all, a system whereby couples regulate to some degree what might happen in the event of a marriage breakdown appears to be sensible.

In essence, a Pre-Nuptial Agreement is an attempt by two people getting married to fix the terms of a possible future separation or Divorce in advance. For example, it can cover issues such as maintenance for the dependent spouse, or maintenance for any children of the future marriage, custody/access to the children, what happens to the family home, how the farmland is to be dealt with ,etc. In effect, it can include anything you want, so long as both parties are in agreement with the terms.

There is no Irish legislation preventing parties entering into a Prenuptial Agreement. However, the Courts are not obliged to enforce such an Agreement in the event of a marital breakdown. This may change in future years. In 2006, a study group was set up by the Oireachtas to consider Pre-Nuptial Agreements and their inclusion into Irish Law. The core recommendation of that Group was that express statutory provision should be made for Pre-Nuptial Agreements and that the common good would be better served if the validity and effect of a Pre-Nuptial Agreement would be determined by the Courts in each individual case. As it stands, this is only a recommendation and still being considered by the Legislature.

Therefore, as it stands at the moment, it is safe to advise you as an intending party to a marriage, that at best a Pre-Nuptial Agreement may be evidence of the intention of the parties at the time of the marriage and no more. However, the enormous changes in social circumstances and in the solidity of the Institution of marriage as it once existed, could in practical terms make such agreements more desirable. As unromantic as it may seem, a Pre-Nuptial Agreement or at the very least discussing the proposed terms of a possible future separation would force a couple to discuss issues that they may not be able to deal with rationally after the marriage has ended.

For them to be useful, bearing in mind that they are not currently legally binding but nonetheless could be looked at by a Court in a separation,a number of minimum requirements should be considered and included in any proposed such agreements, if you decide to do it.

1. Full Disclosure by each party to the impending marriage of all their financial assets;

2. Clear identification of who is bringing what into the marriage, could be useful for record purposes;

3. It would be imperative that each party got their own independent legal advices and the couple would have to be advised of their legal rights on marriage.

4. Absence of Duress on either side;

5. Equal bargaining power between the parties.

6. Depending on the age of the couple, a review clause should be inserted to allow the Agreement to be reviewed every few years, as circumstances within the marriage changed, for instance, the arrival of children or the acquisition of assets.

Finally, both parties should be allowed the time and space that is required to ensure they understand the effect of such Agreement and therefore it would not be advisable that any such agreement be entered into a few weeks prior to the Marriage. In doing this, you may find this Agreement to be a useful foundation should this unfortunate event impact upon your future together in unity.

I wish you both a very long, happy and faithful marriage.

Myra Dinneen

Published: West Cork People June 2009