There is an old saying that "you walk up the aisle with 100 acres, you walk down the aisle with 50", so if there is an understanding in marriage that assets will be shared do we even need pre-nuptial agreements?

The Irish Farmer's Association thinks so. This week, at the National Ploughing Championships, they appealed to the Justice Minister, Frances Fitzgerald, to make pre-nuptial agreements legally binding.

Farmers voiced concerns about the transfer of land to younger generations.

They outlined fears amongst farmers that farms could be split up and sold off in the event of a son or daughter’s divorce.

The government is now expected to review the system. 

Not enforceable

But many will be surprised that pre-nuptial agreements are not already legally enforceable, even if they have been agreed by both parties.

That is because, in Ireland we have an institutional model of marriage, rather than a contractual model.

That means while your marriage is a contract, it is a contract with the State, not with your partner.

A pre-nuptial agreement is a way of personalising that contract and bringing your own requirements into it.

It can act as a guide for the courts in judicial separation and divorce cases.

Fiona McLoughlin, Law lecturer in IADT in Dun Laoghaire told Newstalk.com says Irish law is not clear though on whether pre-nuptial agreements are enforceable or not.

"If it is an unconscionable bargain, if somebody is being taken advantage of the courts will not allow the pre-nuptial agreement to go ahead."

"In Britain there are five pre-requirements for a pre-nup to be recognised, in Ireland there are no Statutes and no rules around it. (Former Minister for Justice) Michael McDowell commissioned a report into it - it basically says there should be legislation around this area."

However, McLoughlin says the issue was not pursued because: "The appetite for pre-nups has wained since divorce came in."

Further, illegitimacy is no longer a concept that is recognised here, so that has caused the law in the area of the transfer of property to change.

But she maintains the splitting of assets can still be difficult, especially in the case of second marriages.

Despite the ambiguity, Fiona McLoughlin does reccomend investigating a pre-nuptial agreement if either the husband or wife wants to keep hold of assets abroad: "If there is an imbalance of assets - if you are married to a foreign national who wants to keep assets in another country separate to the marriage, you should investigate a pre-nuptial agreement." 

What does a pre-nup cover?

A pre-nuptial agreement can prevent individual assets from becoming communal property, if the courts enforce it. 

How the assets are split in a pre-nuptial agreement would be up to the couple themselves.

But they do not only cover money and property.

Agreements can also cover how a couple would like their children to be raised and what religion they might be raised through.

An agreement could also cover the ownership of a family heirloom that you want to make sure stays in your family.

The care plan for a special needs child could also be detailed.

In the past pre-nuptial agreements have even been drawn up stating that if either of the parties puts on weight a financial penalty will be levied. 

But in the case of illness for example there is an expectation of support.

Financial responsibility

Karl Deeter, Financial Adviser at Irish Mortgage Brokers says standard mortgages are designed so that the debt is joint and severable. That is also true in business loans.

That means each person on their own can be held liable for a debt the couple took out as a couple - so if one runs off, the other person is responsible for the debt.

But a pre-nuptial agreement will not protect you from that because that is a contract taken out together with the bank.

Deeter says banks do not really offer any alternative kind of loans.

However, he says if one party to a marriage previously bought a house that is now in negative equity the bank cannot come after the new spouse for payment of that loan, because they were not party to the mortgage agreement.

Pre-nup exemptions

There are certain instances in which a pre-nuptial agreement can also be voided.

You cannot make a pre-nup sooner than 28 days in advance of a marriage. 

Law lecturer Fiona McLoughlin says: "In the UK, the existence of children may make a pre-nup non-enforceable for example. Contract law may make it non-enforceable."

"If independent advice wasn't sought - Steven Spielberg's first wife managed to get a pre-nuptial agreement thrown out on that basis". 

The court would also have to be satisfied that there had been a complete disclosure of assets before the agreement was signed.

If you do decide to get a pre-nuptial agreement, Citizens Information recommends that you build in periodic reviews particularly when children are born, or if circumstances change.