A pre-nuptial agreement (also called an ante-nuptial agreement) is an agreement between two persons who propose to marry each other in relation to property, maintenance and custody arrangements in the event of marriage breakdown.
Legal status of pre-nuptial agreements
Pre-nuptial agreements have no basis in law in Ireland. As a result, they are not strictly binding. This means that if you have a pre-nuptial agreement in place and you are before the courts upon the breakdown of the marriage the judge is not bound by the terms of the pre-nuptial agreement.
The only provision in Irish law is under sections 113 and 113A of the Succession Act 1965 (as amended) where a spouse or a civil partner can renounce his/her legal right share in a pre-nuptial agreement.
Despite the above, there is nothing in Irish law which stops a couple intending to marry from signing a pre-nuptial agreement. Importantly, such agreements can serve as guides for the courts in judicial separation and divorce cases. If a pre-nuptial agreement makes ‘proper provision’ for each party it is more likely to be persuasive on the judge. Therefore, in situations where one party is likely to inherit a significant family farm or business, it will guide the judge in the divorce or judicial separation on what the parties’ intentions were at the outset.
Drafting a pre-nuptial agreement
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:
- Periodically (for example, every five years)
- If children are born
- If there is a major change in circumstances (for example, assets are purchased or sold)
The agreement should be in writing, be signed by each party and comply with the general provisions of contract law.
The future of pre-nuptial agreements
In April 2007, the Government published the Report of the Study Group on Pre-nuptial Agreements (pdf). 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.
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 allows cohabitants to enter into a cohabitants’ agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise. However, the Act stipulates that the agreement will only be valid if the parties have obtained independent legal advice or have obtained legal advice together and have waived in writing the right to independent legal advice. Further, the agreement must be in writing, signed by both parties and must comply with the general law of contract.
The Court can vary or set aside such an agreement if it is enforceability would cause serious injustice.
For further information on cohabitation, see ‘Rights of cohabiting couples’.