Pre-nuptial agreements have long been a mystifying area of family law.  Despite pre-nuptial agreements being on the rise in recent years, many are unsure as to the legal significance of such agreements and whether they are recognised by the Irish family law courts.  Pre-nuptial agreements as of yet lack legal footing, this article will endeavour to shed light on some of the many uncertainties surrounding such agreements.

What is a Pre-Nuptial Agreement?

A pre-nuptial agreement, is, as its title suggests, an agreement that is entered into by a couple prior to marriage. The agreement details what is to occur should the marriage break down. Such agreements make provision for the division of marital assets, custody and access of children, pension entitlements, lump sum orders, maintenance and testamentary rights in the event of marital break down. Such agreements are said to be on the increase in recent years as parties entering into marriage are more aware of their individual wealth.

Legality and Enforcement  of Pre-Nuptial Agreements

Parties to a marriage are perfectly entitled to enter into a pre-nuptial agreement if they so wish. However, the difficulty is doing so lies in the fact that there is currently no legislation in place governing the area of pre-nuptial agreements. Therefore, much ambiguity surrounds the enforceability of pre-nuptial agreements and how a court will interpret such agreements.

Recent Irish case law suggests that, although a court will certainly take into account a pre-nuptial agreement when ruling a judicial separation or a divorce, a court is  not bound by the agreement and is therefore entitled to make decisions which are contrary to the agreement. A court must be satisfied that both parties obtained independent legal advice and that full financial disclosure was made by both parties prior to entering into a pre-nuptial agreement. It was also recommended in the Governmental Report of the Study Group on      Pre-Nuptial Agreements 2007 that such agreements should be in writing, made not less than 48 days before  the marriage and  should be reviewable on death.

Therefore, it is clear that the legal position of pre-nuptial agreements is a precarious one and parties entering into such agreements may find themselves wondering as to how a Judge will interpret such agreements in the absence of governing legislation. There is also the question as to what is the point of entering into such an agreement if a Judge may completely disregard the agreement if he/she deems it just to do so. The reality of the situation is that, at present, a Judge may well disregard a pre-nuptial agreement. However, it is more likely that he/she will take the agreement into consideration when ruling a separation or divorce if the agreement conforms with the guidelines as set out in the Governmental Report of the Study Group on Pre- Nuptial Agreements.

For many years, pre-nuptial agreements were associated with cautious (and one could argue, unromantic) celebrities such as Tom Cruise and Michael Douglas in attempts to protect their millions. However, with more and more of us mere “mortals” now seeking to enter into pre-nuptial agreements, it seems that legislation governing such agreements is on the horizon.