Prenuptial agreements now feature in Irish marriage arrangements. But they may not be legally enforceable, writes Carol Coulter, Legal Affairs correspondent.
In post-divorce Ireland, as the dissolution of a marriage has become a real possibility, some solicitors are being asked to draw up prenuptial agreements. However, as yet they have no force in Irish law, presenting a dilemma both for the solicitors and for those seeking such contracts.
There are some misconceptions, based on the treatment of the subject in the media and Hollywood, about what a prenuptial agreement is. What it is not, on this side of the Atlantic, is a detailed contract concerning the conduct of the marriage. In the US it is not uncommon for prenuptial agreements to cover such areas as birth control, housework, a blueprint for the resolution of arguments, decisions about surnames and specifications of support and living expenses.
But in the UK, to which Irish people seeking such an agreement tend to look, such details have no place in a prenuptial agreement, and would receive short shrift in the courts. There they are agreements entered into between intending spouses to protect their assets in the event of a marriage breakdown.
Most EU members states allow some form of prenuptial agreement. They tend to concentrate on property issues, how the property of both spouses is owned following marriage, and how it will be disposed of if the marriage breaks up.
Ireland and the UK differ from most EU countries in that individuals who marry continue to own their own property during the course of the marriage, and property adjustment only arises in the context of separation or divorce. In most EU countries a matrimonial property regime operates, with shared property.
That is one reason why the issue of prenuptial agreements is arising more frequently here and in the UK. According to Geoffrey Shannon, lecturer in family law in the Law Society and Ireland's representative on an EU committee examining the harmonisation of family law, 15 per cent of marriages in Ireland are now bi-national. Given that under an EU convention known as Brussels Two, people can now shop between jurisdictions for a divorce, the regime that operates in other countries has become very relevant.
"Prenuptial agreements are becoming much more of a live issue," says Muriel Walls, family law specialist with McCann Fitzgerald.
"But we're in the same situation as people in the UK. They have no force in law. However, in the UK courts have had to take into account the fact that there was a prenuptial agreement, and that this was evidence of the couple's intentions at the time of the marriage."
As yet there has been no attempt to enforce the terms of a prenuptial agreement in the Irish courts.
Traditionally prenuptial agreements have been frowned upon by the courts and the legislature in Ireland and the UK. Seen as contrary to the sanctity of marriage and to public policy, they also seemed to suggest a less than wholehearted commitment to the marriage.
In Ireland there is an added complication, in that the Constitution guarantees to protect the institution of marriage, and the clause dealing with divorce, along with the accompanying legislation, specifies the role of the courts in making "proper provision" for spouses and dependent children. That can't be over-ridden by any pre-marriage agreement.
They can also go wrong. "A lot of solicitors won't do them," says Walls. "If you negotiate it you have to stand over it, and if it goes horribly wrong you could be liable. I'm not a huge fan of them, but I have done a few."
If a solicitor does draw up a prenuptial agreement, he or she must limit its contents to what may be enforceable. "The courts here will not enforce personal contracts," says Walls. "A solicitor should also advise the client that the best they could hope for is what the UK courts did, take account of the agreement as evidence of what the parties intended at the time.
"If a couple come in looking for a prenuptial agreement I point out that the courts may not enforce it, and often they decide there is not much point. Each party should also have independent legal advice, and there must be full disclosure of assets." Yet the demand is growing, both she and Shannon agree. In particular where one or both of the parties have been married before, and there are existing children.
"A lot of couples in this situation might both sell their houses, and want their shares to go back to their children. The agreement would deal with these sorts of issues. But those sort of sensible things can be done with wills and sorting out the terms of the ownership of the new house, without a prenuptial agreement. I would advise a couple entering a second marriage to identify what each of them had at the time, so that if things go horribly wrong they have a record."
According to Shannon, "prenuptial agreements are on the horizon. The courts have not yet considered them, and they do tend to fetter the jurisdiction of the court. There is no legislation on their enforceability.
"One of the issues that has arisen in post-divorce Ireland is the intention to quarantine property like a family farm from division following divorce. Such agreements are useful as a planning tool.
"They exist elsewhere in the EU. What if a person drafts a prenuptial agreement, say in France, and is in a bi-national marriage? Is it enforceable here? We're in a twilight zone at the moment.
"This is an idea whose time has come, and there should be legislation here," he says. "It has been promised in the UK, and if it becomes law there we will be the only EU member-state without it."
