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Aaron McKenna: Marriage is nothing more than a contract – bring on the prenups

There should be no reason that society prevents people from entering into an agreement that allows them to protect their respective assets, writes Aaron McKenna.

Aaron McKenna

THE DIVORCE REFERENDUM passed by the slimmest of margins in 1996, about a single vote per ballot box. It was a wrenching national argument of epic proportions. Family, the life of the nation and the rights of individuals all engaged in an orgy of vitriolic debate. Politicians have done well to avoid the issue ever since. As the abortion debate has reminded us, it’s difficult to talk about and get anything else done once one of these national social issues kicks off.

This government is now looking seriously at two major proposals to liberalise our marriage laws: one reform on the way in, and another on the way out. We will vote on legalising gay marriage in 2015, and early polls show strong support. With less triumphal fanfare the government has also announced its intention to consider legislating for prenuptial agreements.

At present prenups carry no real legal weight in Ireland. Depending on the judge you get there might be some consideration given to the existence of such an agreement, but no guarantees. Previous governments have looked at the topic of legislating to provide a basis on which the agreements would become enforceable, but very little progress has been made beyond the production of reports on which to store dust in the national archives.

Marriage is nothing more than a contract

At the risk of having the women (and soon, men) beating down my door, I must say that marriage is nothing more than a contract between two people who decide to spend their lives together. Whatever religious connotations you want to add atop that is your own business, but as far as the State is concerned marriage is a convenient tax and inheritance arrangement.

You can live with your significant other without marriage. You can have kids without marriage. If you break up, the kids will be provisioned for regardless of marital status. You can pretty much do as you wish with someone else without being married.

The marriage itself is a formal contract binding one person to another. It is also one of the most heavily regulated types of contract: if you decide to dissolve it, you do so in a fashion at the whim of courts, you can’t have any binding say in the terms of dissolution at the time of entering the contract; and it takes half a decade by the time all is said and done to get out of it.

Now, in general, divorce is a sad and a bad thing. Not many people get married to get divorced. Relationships matter, and a society that devalues them is a devalued society. But the fact is that breakups happen, and it seems that in Ireland we have laws designed to extract penance from the sinners who don’t stick it out.

That goes back to the tumultuous arguments around divorce when we so narrowly passed it into our constitution. In a sense we have another of what Haughey called “An Irish solution to an Irish problem,” when he was referring to the now ridiculous provision of contraception by way of doctors’ prescription to married couples.

Divorce in Ireland is a fudge. The lengthy period of time it takes to get a divorce exists in the hopes that after two or three years of separation a couple will see the light and get back together. Maybe that does happen. And when it does, a couple could always just get married again if they liked. They pay for their marriage license like everyone else.

Prenups are not provisioned for despite it being wholly logical to do so when we introduced divorce, because it would be another offence to the idea that marriage is for life as mandated by society, God, the good book and whatever else you’re having yourself if you’d just vote Yes in the 1996 referendum.

Big boys and girls should be able to make their own decisions

Why exactly is it the business of society, 166 TDs and a number of judges to decide to how people can go about their marriage…? People are big boys and girls and should be able to make their own decisions and protect their own financial interests in divorce. This is not a one way street, with a rich woman being able to provision for a less well-off man in an equitable way at the outset of a marriage in the event it breaks down. After all, it takes two parties to sign the agreement and both spouses can negotiate for a better deal that, in the end, leaves them both with peace of mind.

Or a prenup might help forestall a divorce, if one has to consider in financial terms just how far someone is willing to go for the other in the event things go sour in the relationship.

Now, I’ve just been discussing married couples. What of kids, says you?

A prenuptial agreement is between two parties who are getting married. Children are provisioned for by family courts regardless of any contracts or agreements as is, and that would remain the same. The beneficiary of, say, a house or monies provisioned for the care and welfare of children following a divorce is the children themselves. It so happens that one of the former spouses will likely become their primary carer, so benefitting indirectly from this in ways that might go beyond what a prenup provisions for strictly between the two parties.

Prenups won’t be for everyone. Broaching the topic before marriage is certainly a gamey exercise. But there should be no reason that society prevents people from entering into an agreement that allows them to protect their respective assets that they’ve built over time or will build regardless of the marriage.

I’ll start accepting proposals from fellow romantics immediately…

Read: Laws recognising prenups to be considered by Government

Read: First poll finds large majority in favour of same sex marriage

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