Modernising the Law on Pre-nuptial Agreements in Ireland

AuthorBrian Barry
PositionSenior Sophister LLB Candidate, Trinity College Dublin
Pages80-96
MODERNISING
THE
LAW
ON
PRE-NUPTIAL
AGREEMENTS
IN
IRELAND
BRIAN
BARRY*
Introduction
A
pre-nuptial
agreement
is
a
contract entered
into
prior
to marriage.
Such
an
agreement
may
contain
provisions for
the
division
of
assets,
spousal
support
and
child support
should the prospective
marriage
fail. Pre-nuptial
agreements
are
increasing
in
popularity both
in
Ireland
and
beyond
as
couples
preparing
for
marriage
seek
to
clarify
their position
should
their
marriage break
down.
Currently,
pre-nuptial
agreements
are
not
enforceable
by
law
in
Ireland.
It
is
at
the
judge's
discretion
in separation
and divorce proceedings
to
pay
as
much
heed
to
the
terms
and
status
of
the
agreement
as
he
or
she sees
fit.
Their
ambiguous
legal
status
only
exacerbates
the
contentious
nature
of
these
legal
proceedings.
This
article
will
assess
the
current position
of
Irish
family
law
on
pre-
nuptial
agreements,
compare
this
position
with other
jurisdictions,
and
analyse
existing
proposals for
reform.
The final
part
of
the
article
will
propose
a
novel
reform
to
make pre-nuptial
agreements
more
enforceable
and
less
contentious
by
providing
a
mechanism
to
standardise
their
drafting
and
keep
them
alive
to
the needs
and
wishes
of
both parties.
The Law
in
Ireland
on
Pre-nuptial
Agreements
Pre-nuptial
agreements
are,
in
theory,
permitted
by
Irish
law,
but
in
practice they
are
not enforced.
A
limited
form
of
pre-nuptial
agreement
has
been
recognised
by
section
113
of
the
Succession
Act,
1965.'
Pre-nuptial
agreements
may
or may not
be
taken
into
account
by
the
court.
Interest
in
pre-nuptial
agreements
has
been
on
the
rise since the
introduction
of
divorce through
the
Family
Law
(Divorce) Act,
1996,
although
perhaps,
as
Senior Sophister
LLB
Candidate,
Trinity
College
Dublin.
Succession
Act,
1965,
s.113
states
that
"the
legal
right
of
a
spouse may
be
renounced
in
an
ante-nuptial
contract
made
in
writing
between
the
parties
to
an
intended
marriage
or
may
be
renounced
in
writing
by
the
spouse after
marriage
and
during
the
lifetime
of
the
testator"
© 2009
Brian Barry
and
Dublin University
Law
Society
Modernising
Pre-nuptial
Agreements
in
Ireland
noted
by
a
recent
report, not
as
high
a
rise
as
may
have
been
anticipated.
2
Historically,
such
agreements
were
struck
out
on
the
basis that
they
offended
public
policy
by
undermining
the
institution
of
marriage,
which
is
constitutionally
protected under Article
41.3.1.3
Early
judicial
trends
are
typified by
Marquess
of
Westmeath
v
Marquess
of
Salisbury
4
in
which
the
court
suggested
that
such
a
pre-marital contract
would
"subvert
the
sanctity
of
marriage".
This
line
of
judicial
reasoning
does
not
reflect
the
current
position.
Public
policy concerns have
been
"substantially diminished"
5
by
the
introduction
of
divorce
in
1996.
Although public
policy
concerns
regarding
pre-nuptial
agreements have
been
aired
since
then,
6
these
are
unlikely
to
constitute
grounds
for
non-enforcement.
Socio-economic
conditions
have
changed:
the
average
age
of
marriage
has
risen, there
is
greater
wealth
amongst
couples
at
the
time
of
marriage,
and
there
is
an
increase
in
second
marriages.
All
of
these factors
contribute
to
the
lessened
public
policy
concern
pertaining
to
pre-nuptial
agreements.
7
The
institution
of
marriage has
a
special
constitutional
safeguard
framed
in
Article
41.3.1°:
The State
pledges
itself
to
guard
with
special
care the
institution
of
Marriage,
on
which the
Family
is
founded,
and
to
protect
it
against
attack.
8
There
is
also
an
unenumerated right
to
marry
within
the
Constitution.
Irish
jurisprudence has
established that
the
origin
of
this
right
is
Article
40.3.9
Central
to
the
enforceability
of
pre-nuptial
agreements
in an
Irish
setting
is
whether
they "attack" the
institution
of
marriage
or
the
right
to
marry. The
courts
have
stepped
in to
protect
the
institution
of
marriage before,
and
judicial
interpretation
of
Article
41.3.10
may
call
into
question
the
validity
2
Study
Group
on
Pre-nuptial
Agreements,
Report
of
the
Study
Group
on
Pre-nuptial
Agreements,
25
April
2007,
at
23
<www.justice.ie/en/JELR/PrenupRpt.pdf/Files/PrenupRpt.pdf>
(visited
24
February
2009).
Constitution
of
Ireland, Article
41.3.10
provides
that
"the
State
pledges
itself
to
guard with
special
care the
institution
of
Marriage,
on
which
the
Family
is
founded,
and
to
protect
it
against attack".
4
Marquess
of
Westmeath
v
Marquess
of
Salisbury
(1830)
5
BLI
339.
'
Study
Group
on
Pre-nuptial Agreements,
note
2,
at
41.
6
Shannon,
"To
have
and
to
hold"
97
Law Society
Gazette
(No.
5,
June
2003),
12
at
14.
7
Study
Group
on
Pre-nuptial
Agreements,
note
2,
at
41;
Crowley "Pre-nuptial
Agreements
-
Have
They Any Place
in
Irish
Family
Law?" (2002)
5(l)
Irish
Journal
of
Family
Law
3.
8
Constitution
of
Ireland, Article
41.3.1
9
Murray
v
Ireland
[1985] IR 532;
McGee
v
Attorney
General
[1974] IR
284,
Fitzgerald
CJ
dissenting.

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