Serious doubts surround the enforceability of pre-nuptial agreements due to the absence of legislation and case law, a solicitor has warned.
Mr Geoffrey Shannon, the Law Society's deputy director of education, who has researched the legality of pre-nuptial agreements, said the courts could object to such contracts on public policy or other grounds.
"Even in the United States pre-nuptial agreements have raised public policy considerations and the courts continue to review the agreements in the light of their fairness and their tendency to encourage divorce. It is difficult to imagine the Irish courts ignoring either consideration," Mr Shannon writes in the current edition of Law Society Gazette.
A "more likely" objection to a pre-nuptial agreement is that it "fetters the power of the courts to vary ancillary orders (following a judicial separation or divorce) - a power that they guard zealously".
Notwithstanding such doubts and the potential risks for solicitors involved, however, "clients should be afforded the benefit of legal advice if they wish to proceed", Mr Shannon says.
One possible use for pre-marriage agreements "is as a source of evidence of the parties' intentions at the time of the agreement". Legal weight should be given to them if they are "fairly entered into, with independent legal advice and full disclosure of both sides' assets and property".
