The question as to whether a prospective husband and wife should agree a Prenuptial Agreement (also known as an antenuptial agreement) is one which which often arises in family law practice. The answer, as with any legal question, depends heavily on the individual facts of the spouses. Frequently, a prospective spouse will give serious consideration to a Prenuptial Agreement before a second (or subsequent) marriage, however its benefits apply equally to spouses entering their first marriage.
In brief, a Prenuptial Agreement is a legal contract entered into prior to date of marriage which commonly includes provisions for how property and assets would be divided, as well as any financial payments, should the marriage break down and lead to separation or divorce. Frequently, a prospective spouse may feel an understandable reluctance to consider such an outcome before marriage takes place. However, taking care to put in place appropriate arrangements should things not work out as we plan is always prudent.
Is it enforceable?
While until relatively recently it was considered that the Irish legislative setting was not one which was conducive to the use of Prenuptial Agreements, the introduction of Divorce in this jurisdiction and the major socio-economic and population changes here over the recent decades have arguably changed this position and there is more of a recognition of the role which these agreements can play and the advantages presented by their use.
It is important to be aware that, while such Agreements are likely mostly known through their use in other jurisdictions (such as in certain US states), there are specific factors in the Irish context which require unique consideration here.
The Constitutional requirement of ‘proper provision’ for parties to a marriage on divorce (or on a less formal basis, in a judicial separation), and the date at which such provision must be made, does militate against Prenuptial Agreements being automatically enforceable in any given case here.
If a Prenuptial Agreement is put in place, and should the date arrive where it must be called upon, its mere existence may be sufficient to reduce or eliminate any dispute or conflict over the appropriate arrangements to be put in place. Indeed it may, in appropriate circumstances, remove the need for judicial separation proceedings entirely.
Were a dispute to arise on separation, and/or were an application to be made to the Courts for a Decree of Divorce (which can only be granted by a Court), the weight to be attached to a Prenuptial Agreement will be determined at that time by the Court in light of the requirement for proper provision and relevant criteria listed in the family law legislation.
Thus, while a Court will not be bound by all the terms of a Prenuptial Agreement, it is something to which at the very least regard will be had, either in part or in whole, and which can be enforceable and capable of variation under existing Irish law. These Agreements can act as an influential framework from which the Courts can act should Judicial Separation or Divorce proceedings issue.
Why use a Prenuptial Agreement?
The advantages of the use of a Prenuptial Agreement in the individual setting include that they can:
- Provide a greater level of certainty and security to both parties in relation to assets and financial affairs;
- Represent an avenue for ensuring financial independence into the future;
- Provide protection from debts; and,
- Minimise or avoid unnecessary disputes and save on costs.
There are certain formal requirements which should be adhered to in a Prenuptial Agreement in order to ensure that they can be relied upon, including the requirement that the other spouse receive separate independent legal advice, and that there is full disclosure of financial information to each other made not less than 35 days before the intended marriage.
What can be included?
Once the formalities are adhered to, the content and terms of the Prenuptial Agreement can be tailored to the parties’ specific circumstances and their aims and intentions. The issues which can be sought to be incorporated include:
- Ownership of any real property including the family home;
- Other assets, chattels or income of either party;
- Pensions and life assurance policies;
- Agreeing or forgoing financial payments between the parties;
- Taxation or succession/inheritance rights; and,
- Indemnity for debts.
A Prenuptial Agreement is an important legal document with consequent rights and obligations and which can have significant implications for the ordering of a party’s financial affairs. For further information or to make an appointment, please call us on 01 832 7899 or email info(at)barronmorris.com.
The material contained on this website is for general information purposes only and does not constitute legal or other professional advice. Any and all information is subject to change without notice. No liability whatsoever is accepted by Barron Morris for any action or omission made in reliance on the information on this site. If you require specific advice on any legal matter then please contact a solicitor.