Prenuptial agreements would not dilute the constitutional protection given to the institution of marriage and the rights to marry, according to a new Government-commissioned report published yesterday.
The report, published by the Tánaiste Michael McDowell, calls for family law and divorce legislation to be amended to formally recognise prenuptial agreements in Irish law for the first time. But it says they should be used only as a guide by judges and be regarded as one factor in deciding on the division of assets after a marriage break-up.The report, carried out by a study group chaired by senior counsel Inge Clissman, also makes recommendations on the formalities necessary for the proper making of prenuptial agreements.
It recommends the introduction of a statutory basis upon which a court may make financial provision for a surviving spouse who may be unfairly affected by the provisions of a prenuptial agreement on the death of the other spouse.
Prenuptial agreements have featured increasingly in Irish marriages following the introduction of divorce in 1996. According to the report the public policy objections to prenuptials have been diminished through the introduction of divorce in Ireland, and may no longer be valid in view of socio-economic and population changes. The group recommends new sections be introduced to the Family Law Act 1995 and the Family Law (Divorce) Act 1996 to provide for prenuptial agreements.
"Provision should be made for prenuptial agreements to be scrutinised by the court in separation and divorce proceedings in much the same way as separation agreements are currently dealt with under section 20 (3) of the Family Law (Divorce) Act 1996." The study group also recommends that prenuptial agreements be reviewable on death and says it runs contrary to succession law to allow interference with the freedom of testation on broad discretionary grounds.
"It is likely that in certain circumstances a surviving spouse may be unfairly affected by the provisions of a prenuptial agreement, eg as a result of the passage of time or other intervening events." It recommends the introduction of law to make financial provision for such a spouse, notwithstanding the existence of a prenuptial agreement.
According to the report a move to ban prenuptial agreements on the basis that they offend the common good would be deemed unconstitutional. "Instead the common good would be better served if the validity and effect of a prenuptial agreement be determined by the courts in each individual case." A definition of a prenuptial agreement should be included in legislation and should be in writing, signed and witnessed, after each party has had legal advice and made a financial disclosure.
Last night Fine Gael Senator Fergal Browne welcomed the recommendations of the report. He said it was important that the next Oireachtas act on the recommendations for changes to the Family Law (Divorce) Act.