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Opinion Ireland is out of sync with the rest of the world – prenups can strengthen a marriage

The enforceability of prenuptial agreements remains a major question in Ireland; but in a country legal aid is limited, avoiding long battles in court is essential

MARRIAGE IS A time for happiness and new starts. But how often are fears suppressed over what might happen to the land where a marriage breaks down?

When the first flush of romance dies off and times get tough, a high percentage of marriages fail. The uncertainty for both parties can lead to small differences becoming deeper until neither person trusts the other – how much better for each person to know where they stand in the event of the marriage breaking down. Clear definitions of who owns what can strengthen a marriage as each person is clear on the consequences of walking away.

In most countries such agreements are legally enforceable and have prevented many a courtroom battle, however in Ireland and England they had been seen as undermining public policy – in that they plan for what will happen on the failure of a marriage. In a country where divorce was not available, that argument may hold sway but we have had divorce since 1997, therefore the ending of marriage is catered for in our legislation.

Obstacles to prenups in the Irish legal landscape

In the Law Reform Commission’s report of 2006, the main obstacle to a prenup was seen as being the court’s ultimate say in determining what constitutes “proper provision” for dependants and spouses on divorce. This power cannot be handed over to anyone other than the divorce judge and, certainly, that judge cannot be bound by a prenuptial agreement.

What the Law Reform Commission recommended was that a new provision be inserted in the Divorce Act stating that the provisions of a prenup are to be taken into account in deciding what constitutes “proper provision”. The Study Group’s core recommendation is that separate provision be made in both the Family Law Act 1995 and Family Law (Divorce) Act 1996 to provide that the courts be required to have regard to existing pre-nuptial agreements when making ancillary relief orders in judicial separation and divorce proceedings.

This has yet to be done. Nor is it on the immediate agenda of the present Minister for Justice.

Legal aid is limited –so avoiding long battles in court is essential 

This reform is necessary as it can be argued that, without it, the institution of marriage could be eroded, in that people will opt to live as cohabitants instead of marrying. The consequent instability for society is a large price to pay; the statistics for separation among cohabitees is far greater than among married people, leading to instability for children.

In this State, where the scheme of Legal Aid is limited, it is essential that people be able to solve their differences without going to court for a prolonged battle.

So, what would a prenuptial agreement look like? It is not unusual for parties to agree that anything they brought into the marriage would remain their sole property on leaving the marriage. Wealth that is built up because of the parties’ joint efforts, including a spouse’s work in the home, would fall to be divided equally between the spouses.

The attraction of this arrangement is that it is fair and gives both something to work towards.

Any prenuptial agreement has to be drawn up only after full disclosure of all assets by both parties. Neither should be threatened by such a disclosure if the result of the disclosure is that their property is protected. This has the advantage of promoting openness at the beginning of marriage – where trust is an essential element of the relationship if it is going to work in any event.

Both people should have separate legal advice and, furthermore, there should be a reasonable time-lapse between signing and actually getting married.

Enforceability remains a major question in Ireland

Whether one wants dramatic clauses about penalties for ‘playing offside’ in extra marital affairs, as was stipulated in Catherine Zeta Jones’ agreement with Michael Douglas, ($5,000 for each peccadillo) is up to oneself. Again enforceability is the major question for us here in Ireland.

But the courts are getting closer to recognition of these agreements. In England, the famous case of the German heiress who had her prenup recognised in England – Radmacher v Granatino got great media coverage.

Not so well covered was the case of Victoria Lucknow v Frankie Limata, also in London, of the husband who, having signed the agreement at least twice in various versions, “never really believed the marriage would break down”. The logic of a judge accepting this as a reason for not recognising the agreement escapes most reasonable people. The fact that the husband was actually left penniless and living in the attic of his father’s house may account for the strained result in this case and the refusal of the judge to recognise the agreement. The wife ended up paying her husband £1.2m to house himself.

A court is unlikely to enforce an agreement if it is grossly unfair, and if there is any element of duress on one party to sign.

As the law stands, Ireland is out of sync with the rest of the world. Couples are entitled to the certainty of knowing what they are signing up to when entering into marriage.

Katherine Irwin is a partner and head of Private Client and Family Law at Beauchamps Solicitors.

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