Why are more Irish people seeking pre-nuptial agreements?

The marriage contracts are currently not recognised under Irish law

Almost three quarters of farmers are in favour of pre-marital agreements.

The research, conducted by FarmIreland.ie, found that land ownership following divorce continues to worry those working in the agricultural sector.

But where do these contracts stand in the eyes of the law in Ireland?

"At the moment, a pre-nuptial agreement is not recognised under Irish law," said Karen Walsh, of Walsh & Partners, Solicitors, and author of 'Farming and the Law'. "But we have reason to believe that if you have a properly drafted pre-nuptial agreement in place, it will be recognised by the courts."

A 2006 report recommended that pre-nuptial agreements be legislated for by way of introducing a new Section 16(2)A of the Family Law Act 1995 and new Section 20(3)A of the Family Law (Divorce) Act 1996 so that the courts would be required to have regard to existing pre-nuptial agreements when making ancillary relief orders in judicial separation and divorce proceedings.

The report also recommended that the legislation should contain procedural guidelines. A pre-nuptial agreement would have to comply with general contractual principles and it recommended that for it to be an enforceable agreement it must be:

  • In writing, signed and witnessed
  • Made after each party has received separate legal advice
  • Made with full disclosure of financial information
  • Made not less than 28 days before the marriage

Why so many?

Walsh said the large majority may come as surprise to many, putting the figure down to societal dynamics and long-held beliefs within the farming industry.

"Many farmers are reluctant to transfer the farm to their son or daughter for fear that it might form a part of the pot of assets that would be up for grabs in the event of a marriage breakdown.

"Farms have been in families for generations - there's a huge attachment to the land - you can't run a farming business without land. To lose the land in rural Ireland can be seen as a shameful thing."

In most cases, Walsh found that those seeking pre-nuptial agreements are entering their second marriage. In others, it's the child who has inherited the farm, who is about to get married.

It's not just farmers either, as business owners are looking at securing its ownership within the family. 

Stigma

Given the increased discussion on pre-nuptial agreements, Walsh indicated that people are beginning to fight against the stigma surrounding the issue.

"People think 'oh if I think about a pre-nuptial, the marriage is going to end in doom'", she said. "If you get married and you get a divorce, a judge will be deciding on how your assets will be divided. If you have a pre-nuptial agreement in place that's fair, then both parties get to decide how the assets will be divided."

Walsh advised those seeking a pre-nup explaining to their fiancé that they will be looked after because of the contract - given that the terms are fair. Periodical reviews of the pre-nup are also necessary.