It is unfortunately the case that many marriages in Ireland break down and increasingly couples are seeking to protect themselves, mainly from a financial point of view, in the event of marriage breakdown. With this in mind more and more prenuptial agreements are being completed.
A prenuptial agreement can give both parties peace of mind and can reduce conflict in the event of separation. The main difficulty however is that the agreement may not be recognised by the court and it is certainly the position that prenuptial agreements are not automatically recognised in Irish courts at the moment.
This may change soon but the position at the moment is that while the agreements are entirely legal, they do not bind a court in the event of legal proceedings issuing.
We would always advise a client that even if the agreement is not binding, it will be very persuasive. If it can be shown that the agreement is fair and reasonable and was entered into by both parties openly, with full financial disclosure, and with the benefit of full legal advice then it is likely to be very persuasive indeed.
We are of the view that it is only a matter of time before prenuptial agreements are formally recognized but that will be a matter for legislation.
The following are points that we would regard as essential in advising whether or not a prenuptial agreement is likely to be regarded as valid and binding by a court:
- The agreement must be completed by both parties in direct anticipation of their forthcoming marriage.
- The agreement must also set out the fact that it is intended to cover a situation that would arise in the event of a breakdown in the marriage.
- It must be clear from the agreement that both parties have made full financial disclosure to the other.
- It must be clear from the agreement that both sides have been independently legally advised and it should be stated specifically in the agreement that this legal advice has taken place and that the agreement is intended to be legally binding.
- The division of assets referred to in the agreement must be reasonable in the circumstances and should be subject to review the event of major changes in circumstances.
- We believe a court would be concerned if an agreement was entered into within days of a marriage taking place. It would be advisable to complete the prenuptial agreement at least a number of months in advance of a marriage.
Having said all of that, the court will not, as legislation currently stands, grant a divorce unless it is satisfied that full and proper provision has been made to all parties. However, if the prenuptial agreement can be shown to constitute a full, fair and proper provision for both parties then it may be accepted by a court.
Our very strong advice would be that if you are considering entering into a prenuptial agreement, you should do this well in advance of the marriage.
It will be persuasive on the Irish government to note that prenuptial agreements are recognised and are enforceable in Germany, Italy, France, Spain, Belgium, Denmark, Canada, and Australia and in many US states. A Bill was recently drafted recognising prenuptial agreements but it remains in draft form.
Q. If the prenuptial agreement is absolutely fair and reasonable, will a court regard it as binding?
A. The best we can say at the moment is that the court will regard it as persuasive only. The law however is almost certainly going to change in this area.
Q. Is it necessary to get legal advice or can we prepare such an agreement ourselves?
A. If the agreement is to stand any chance of even being regarded by the Court as persuasive, in our opinion the parties will have to show that both of them were independently legally advised.
Q. How long will this take and how much will it cost?
A. We would generally charge around €1,200 for a basic prenuptial agreement but our fees are determined by the amount of time spent dealing with the case and any unusual difficulties or complexities that arise. We would not charge you more than this without first obtaining your consent.