A pre-nuptial agreement is a contract entered into by a couple before they get married. It will set out how property and financial matters will be divided in the event of the marriage breaking down.
It will usually address such issues as division of property, lump sum payments, pensions, maintenance and custody of children. The purpose of a pre-nuptial agreement is to avoid a dispute if the couple separate.
While there is nothing in Irish Law to preclude a couple from signing a pre-nuptial agreement, a court is not obliged to enforce it.
An expert group studied the legal position of pre-nuptial agreements and reported to the Minister for Justice in 2007. The group recommended that pre-nuptial agreements should be given legal recognition in Ireland. It also recommended that in order for it to be enforceable the following should be complied with:
- The agreement should be fair and reasonable;
- It should be entered into by the parties freely and openly;
- There should be full financial disclosure;
- Both parties should have the benefit of legal advice; and
- The agreement should be made not less than 28 days before the intended marriage.
The report’s recommendations have not yet been implemented.
As legislation currently stands in Ireland, a court will not grant a judicial separation or divorce unless it is satisfied that there is full and proper provision for all the parties, and in particular any dependent children. However, if a pre-nuptial agreement is seen as fair and reasonable, it may be persuasive to a court.
The Irish Courts have not yet made a definitive ruling regarding the enforceability of pre-nuptial agreements but is reasonable to suggest that if the guidelines above are followed, there is a good chance that a Court would take an agreement into account.
Pre-nuptial agreements are recognised and enforceable in Germany, Italy, France, Spain, Belgium, Denmark, Canada, and Australia and in many US states. In England, the courts take into account the fact that a prenuptial agreement has been signed by the couple as a factor that they must consider when deciding on the financial provision for the spouses.
Pre-nuptial agreements are not just for the rich and famous. They may be very sensible contracts for couples who are marrying for a second time either after divorce or death of their first spouse. They may wish to make provision for their first families and wish to vary the rights and duties of the marriage contract to reflect these existing obligations.
