A pre-nuptial agreement is an agreement entered into between engaged couples, setting out how all assets will be divided should the marriage subsequently come to an end. The pre-nuptial agreement is fast becoming a form of divorce planning.

The Irish Constitution recognises the family as the natural and primary unit of society and pledges to protect the institution of marriage from unjust attack. In the past, the concept of the pre-nuptial agreement may have been viewed as an attack on the institution of marriage by envisaging its dissolution. The introduction of divorce into Irish law, however, together with the social and economic changes of recent years, has diminished the likelihood of pre-nuptial agreements being viewed as unconstitutional and contrary to public policy, but this has yet to be clarified by the courts and the legislature. It has also been argued that pre-nuptial agreements may not always provide a fair solution to marital break up. They may prompt litigation, with either party choosing to attack the agreement at a later date.

Furthermore, given that no 'clean break' provision is provided for in family law legislation, the enforceability of pre-nuptial agreements is questionable. In F v F (Judicial Separation) ([1995] 2 IR 354), Mrs Justice Catherine McGuinness stated: 'The Oireachtas has made it clear that a 'clean break' situation is not to be sought and that, if anything, financial certainty is virtually to be prevented'.

A study group on pre-nuptial agreements was established by the then Minister for Justice Michael McDowell in December 2006. The aim of this group was to study and report on the operation of the law since the introduction of divorce in 1996 with respect to pre-nuptial agreements. The group concluded that pre-nuptial agreements do not offend against the constitutional protection afforded marriage. However, the constitutional requirement on divorce for proper provision and the date of assessment of such proper provision prevents pre-nuptial agreements from being automatically enforceable. The requirement that proper provision be made for spouses and dependent family members will be of foremost importance and will outweigh any pre-nuptial agreement.

The group has recommended that express statutory provision be made for pre-nuptial agreements which will allow for them to be analysed by the court in the way that prior separation agreements are currently dealt with on divorce. There is also a recommendation that the courts be required to have regard to existing pre-nuptial agreements when making ancillary relief orders in judicial separation and divorce proceedings. The group has also recommended that pre-nuptial agreements be reviewable on death and that a definition of pre-nuptial agreements be inserted into the Family Law Act 1995 and the Family Law (Divorce) Act 1996 so that to be enforceable an agreement must be: in writing; signed and witnessed; made after each party has obtained independent legal advice; made with full disclosure of financial information; and made not less than 28 days before the intended marriage.

Pre-nuptial agreements are enforceable in many European countries to include France, Germany, Italy, Spain, Belgium and Denmark. Pre-nuptial agreements are also enforceable in many US states. As the law stands, it is uncertain whether a pre-nuptial agreement validly entered into in another EU country would be enforceable in Ireland. This is another issue that needs to be addressed if statutory provisions are made for pre-nuptial agreements.

As matters stand, there is no Irish legislation preventing parties from entering into a pre-nuptial agreement. However, the courts are not obliged to enforce such an agreement in the event of marital breakdown. While there is no statutory bar to a pre-nuptial agreement being considered, it will be only one of many factors considered by the courts to ensure that proper provision is made for the spouses and any dependent members of the family.

For further information please contact Rachel Murphy.


Summer 2007.