A pre-nuptial agreement (also called an ante-nuptial agreement) is an agreement entered into by a couple before they get married. In some cases a couple may enter into a post-nuptial agreement after they get married.
Pre-nuptial agreements vary according to each couple’s particular circumstances but generally they make provision for financial and property matters, and other issues, following the breakdown of the marriage. They can cover issues such as lump sum payments, pensions, maintenance and custody. A couple enters into an agreement in order to try and avoid a dispute if they separate. Some pre-nuptial agreements cover issues arising during the marriage. Under Section 113 of the Succession Act 1965 a spouse can renounce his/her legal right share in a pre-nuptial agreement.
Enforcing a pre-nuptial agreement
There is nothing in Irish law which stops a couple intending to marry from signing a pre-nuptial agreement. Such agreements can serve as guides for the courts in judicial separation and divorce cases, however, the courts are not obliged to enforce them.
Only pre-nuptial agreements entered into following independent legal advice for both parties are likely to be taken into account. The court would have to be satisfied that there had been a complete disclosure of assets before the agreement was signed. It is also advisable for the agreement to provide for reviews:
- If children are born
- If there is a major change in circumstances
Study Group on Pre-nuptial Agreements
In December 2006 the Government set up a group to study and report on the operation of the law with respect to pre-nuptial agreements since the introduction of divorce in 1996, taking into account constitutional requirements. In April 2007 the Report of the Study Group on Pre-nuptial Agreements (pdf) was published. The Study Group held that pre-nuptial agreements were enforceable and capable of variation under existing Irish legislation. The weight to be attached to an agreement is determined by the courts in the light of the requirement for proper provision and the relevant statutory criteria, for example, Section 20(2) of the Family Law (Divorce) Act 1996.
The report recommended that pre-nuptial agreements be legislated for by way of introducing a new Section 16(2)A of the Family Law Act 1995 and new Section 20(3)A of the Family Law (Divorce) Act 1996 so that the courts would be required to have regard to existing pre-nuptial agreements when making ancillary relief orders in judicial separation and divorce proceedings. The report also recommended that the legislation should contain procedural guidelines. A pre-nuptial agreement would have to comply with general contractual principles and it recommended that for it to be an enforceable agreement it must be:
- In writing, signed and witnessed
- Made after each party has received separate legal advice
- Made with full disclosure of financial information
- Made not less than 28 days before the marriage
The report also recommended that pre-nuptial agreements be reviewable on death. This is so that a court may make financial provision for a surviving spouse who may be unfairly affected by the provisions of a pre-nuptial agreement on the death of the other spouse in certain circumstances.
The report’s recommendations have not yet been implemented.