How Long before Prenups are Recognised in Ireland?
Recent statement by Junior Minister Josepha Madigan who stated that Ireland was ‘Out of sync’ with the rest of the world in relation to prenuptial agreements has reignited the debate about whether prenups should be recognised in this country.
In Ireland, there is currently no legal basis for prenuptial agreements being recognised. While there is no prohibition on couples entering into a prenuptial agreement, there is no legislation which permits or forces the court to take them into account or regard them as legally binding.
In 2019, a report by the well-renowned legal expert Dr Geoffrey Shannon on behalf of the Law Society recommended reform of Irish divorce law to allow for prenuptial agreements to be recognised. Indeed over a decade previously a study commissioned by the Government had also made recommendations that such agreements be recognised.
It should be noted that under our current divorce legislation when a judge makes an order for divorce, he or she must make what is called ‘proper provision’ for both parties to the marriage. Proper provision has to be made at the time of the granting of the divorce and the danger is that if prenuptial agreements were to be recognised, it may tie the hands of the court in making proper provision in that the contents of the prenuptial agreement may be outdated and may not being about a fair division of the assets at the time of the divorce.
Furthermore, prenups will have been entered into generally when the couple in question have no children. It may well be that by the time the parties separate, parties may well have children, there may be difficulties with one or more of the children, or indeed difficulties health wise with one or more of the parties and under our current divorce legislation these factors can be taken into account.
Accordingly while on the face of it, it would seem reasonable and fair that prenuptial agreements be taken into account it is also the case that such agreements may not take into account factors which become very important during the course of the parties’ marriage. In this regard is it fair that a prenuptial agreement made say 30 years previously should take precedence over the factors which pertain following 30 years of a couples marriage. The prenuptial agreement may have dealt with assets acquired prior to the marriage but this may not adequately recognise the contribution of the other spouse during the course of the marriage.
The factors to be taken into account by the Court under our current divorce legislation gives the court sufficient discretion to provide for both parties to the marriage and in doing so can also take into account the content of a prenuptial agreement without being bound by the provisions of same. It is certainly arguable that this is more likely to produce a fairer outcome than one where a Court’s hands may be tied by the provisions of a prenuptial agreement. Certainly if legislation were to be brought in making prenuptial agreements binding on a Court in the current list of factors which currently under s.20 of the Divorce Act which currently govern the decision making authority of the court would have to be reviewed. . Currently, there is no statutory provision for recognising prenuptial agreements, even though there is no prohibition on the courts taking it into account. Perhaps the fairest way of dealing with prenuptial agreements would be to include a prenuptial agreement as one of the factors that can be taken into account by the Court when making proper provision without being bound entirely by its provisions.
For any further information on this or any other family law matter, do not hesitate to contact Brendan Dillon or Erika Coughlan on 012960666.
