QUESTION:
I AM A THIRTY TWO YEAR OLD MAN. I AM ENGAGED TO BE MARRIED. I
FARM 130 ACRES OF LAND, WHICH WAS TRANSFERRED BY MY PARENTS TO
ME FOUR YEARS AGO. ALTHOUGH I DO NOT ANTICIPATE THAT MY FUTURE
WIFE AND I WILL SEPARATE , I AM WONDERING IF THERE IS SOME WAY I CAN
PROTECT THE FAMILY FARM IN THE UNLUCKY EVENT THAT OUR MARRIAGE
DOES BREAK DOWN.COULD THIS BE DONE BY MEANS OF A PRE-NUPTIAL
AGREEMENT AND IF SO, WHAT IS INVOLVED IN IT?
Dear John,
The romantics would say that you should marry for love and work for money.
The idea of asking a future spouse to sign an agreement prior to the marriage,
which seeks to fix the terms of a possible separation or divorce in advance ,
should the marriage fail, could be interpreted as a lack of trust on your part by
your future spouse. After all most people prefer to walk down the aisle in the
hope and belief that it is for life.
However, for all the promises that are made, marriages do breakdown and
with the advent of legislation such as the Judicial Separation Act of 1989 , and
in recent years Divorce, couples do now more readily separate , some divorce
and in some cases move on with their lives and into second relationships and
second marriages.
No doubt about it in Irish law, a marriage breakdown can have very serious
long term financial consequences. Therefore, is it not only natural that one or
both parties to a marriage would want to protect their assets in the event of an
irretrievable marriage breakdown? After all, a system whereby couples
regulate to some degree what might happen in the event of a marriage
breakdown appears to be sensible.
In essence, a Pre-Nuptial Agreement is an attempt by two people getting
married to fix the terms of a possible future separation or Divorce in advance.
For example, it can cover issues such as maintenance for the dependent
spouse, or maintenance for any children of the future marriage,
custody/access to the children, what happens to the family home, how the
farmland is to be dealt with ,etc. In effect, it can include anything you want, so
long as both parties are in agreement with the terms.
There is no Irish legislation preventing parties entering into a Prenuptial
Agreement. However, the Courts are not obliged to enforce such an
Agreement in the event of a marital breakdown. This may change in future
years. In 2006, a study group was set up by the Oireachtas to consider Pre-
Nuptial Agreements and their inclusion into Irish Law. The core
recommendation of that Group was that express statutory provision should be
made for Pre-Nuptial Agreements and that the common good would be better
served if the validity and effect of a Pre-Nuptial Agreement would be
determined by the Courts in each individual case. As it stands, this is only a
recommendation and still being considered by the Legislature.
Therefore, as it stands at the moment, it is safe to advise you as an intending
party to a marriage, that at best a Pre-Nuptial Agreement may be evidence of
the intention of the parties at the time of the marriage and no more. However,
the enormous changes in social circumstances and in the solidity of the
Institution of marriage as it once existed, could in practical terms make such
agreements more desirable. As unromantic as it may seem, a Pre-Nuptial
Agreement or at the very least discussing the proposed terms of a possible
future separation would force a couple to discuss issues that they may not be
able to deal with rationally after the marriage has ended.
For them to be useful, bearing in mind that they are not currently legally
binding but nonetheless could be looked at by a Court in a separation,a
number of minimum requirements should be considered and included in any
proposed such agreements, if you decide to do it.
1. Full Disclosure by each party to the impending marriage of all their
financial assets;
2. Clear identification of who is bringing what into the marriage, could be
useful for record purposes;
3. It would be imperative that each party got their own independent legal
advices and the couple would have to be advised of their legal rights on
marriage.
4. Absence of Duress on either side;
5. Equal bargaining power between the parties.
6. Depending on the age of the couple, a review clause should be inserted
to allow the Agreement to be reviewed every few years, as
circumstances within the marriage changed, for instance, the arrival of
children or the acquisition of assets.
Finally, both parties should be allowed the time and space that is required to
ensure they understand the effect of such Agreement and therefore it would
not be advisable that any such agreement be entered into a few weeks prior to
the Marriage. In doing this, you may find this Agreement to be a useful
foundation should this unfortunate event impact upon your future together in
unity.
I wish you both a very long, happy and faithful marriage.
Myra Dinneen
Published: West Cork People June 2009