Pre-nuptial agreements have been called “an insurance policy against falling out of love”. Unlike the US, Canada, New Zealand and Australia, Ireland currently has no legislation which recognises pre-nuptial agreements.
Pre-nuptial agreements set out how assets and finances might be divided when people separate or divorce; cohabitation agreements serve the same purpose for co-habiting couples who separate or where one person dies. As well as property and assets, an agreement can deal with issues such as succession rights, child custody and access, maintenance, and pensions.
While an Irish couple is not prevented from signing a pre-nuptial agreement in Ireland, the Irish courts do not have to put such agreements into effect if the couple’s relationship later breaks down. The agreements are not illegal but our Constitution places great value on the institution of marriage and the conventional family. Therefore, in Ireland, there is a constitutional preference for marriage and the traditional family which tends to throw cold water over pre-nuptial agreements. By drawing up a pre-nuptial agreement a couple is seen as preparing for the future break up before the marriage even begins!
Having said that, pre-nuptial agreements can be of assistance in the breakdown of the marriage as they can be referred to and used as a guide for the distribution of the assets so long as the Judge considers that the agreement was made fairly and responsibly and the interests of both parties have been looked after.
The IFA has recently expressed concerns, following the Civil Partnership Act 2010, that unmarried farmers who are cohabiting could lose land and assets. Now, a couple who have lived together in an intimate and committed relationship for five years, or two years if the parties have children together, may be considered “qualified” cohabitants with one party financially dependent on the other.
It is advisable for cohabiting couples to seek legal advice on cohabitation agreements.
It is of interest that the IFA is now seeking legal recognition of pre-nuptial agreements.
A recent report on Post-Separation Parenting suggests that pre-nuptial agreements should be commonplace where children are concerned, avoiding future problems such as access during holidays, custody rights, and one parent remarrying and so on.
Traditionally, people look to enter into pre-nuptial agreements where either one or both individuals have been married previously. Many of these situations involve children from a previous marriage and parents want to ensure that they look after their children.
Another situation which people may wish to deal with is where one person comes to the marriage with a large amount of assets – which far exceed the assets of the other person.
Pre-nuptial agreements may offer peace of mind for couples who are entering marriage. It can take the pressure off if they are to separate and it can help in making spouses commit to the contract of marriage as there is a contract in place in the event of separation. The agreement will state the length of the pre-marital contract, percentage division of present and future property, succession act rights, maintenance, lump sum payments, pensions, and custody.
While at present, the Irish courts do not recognise pre-nuptial agreements for married couples, the recognition of cohabitation agreements, following the Civil Partnership Act 2010, may prompt a way forward in this area. Furthermore, with the reluctance of people to litigate their difficulties these agreements may be a way of minimising the need to go to Court.
