A group of legal experts is to be appointed to examine prenuptial agreements. Lawyer David Hegartyexplains some of the myths and realities of prenups.
Prenuptial Agreements are about control. Marital breakdown is primarily caused either by the tensions surrounding control issues, or alcohol and its behavioural problems. Adultery, often a trigger to the termination of a relationship, is only occasionally the cause of marital breakdown.
Contrary to the prevailing public view, prenuptial agreements are not illegal or unenforceable in Ireland. They are in fact expressly referred to, and provided for, in the legislation, at Section 9 (1) (c) of the Family Law Act, 1995, and Section 14 (1) (c) of the Family Law (Divorce) Act, 1996. In these sections pre-nuptial agreements are described as "ante-nuptial", and the sections also refer to post-nuptial agreements.
Why then, all the fuss and attention engendered by pre-nuptial agreements? Simply, it is because those in control of resources and assets are fearful of the financial responsibilities and obligations engendered by marriage. This fearfulness is occasioned by the growing awareness that the Family Law Courts, since the divorce amendment in 1996 to the Constitution, have been providing large and substantial provision to spouses from family resources upon marital breakdown.
The 1996 constitutional amendment raised the financial bar in family law matters to a high level, when the people made the granting of a divorce conditional upon "proper provision" being made. Contemporaneously, and coming into force in February 1997, was a retrospective amendment to Section 16 (1) of the Family Law Act, 1995, deleting the requirement that the provision had to be merely "adequate" and reasonable and replacing it with the requirement of "proper provision". Accordingly, it is possible in Ireland, somewhat unusually in international terms, for a spouse to obtain their "proper provision" not once but twice, when a subsequent divorce application is brought. In effect, there is a "double jeopardy", with constitutional standing, within Irish family law.
Alongside that legislative change, there has been the accretion of significant wealth within the economy, and increased judicial instance that a spouses work within the home as homemaker and parent, is of the same standard and value as the other spouses enterprise and business acumen, outside of the home. And that is as it should be.
The problem with prenuptial, or ante-nuptial agreements to give them their more accurate legal title, is that they are reviewable by the judiciary in the making of "proper provision". Under the sections of the 1995 and 1996 Acts referred to earlier, judges are entitled to vary these agreements, on a case by case basis, to provide for separating spouses. The constraints on the exercise of that power, aside from judicial precedent, is to be found in a long list of criteria set out in Section 16 of the 1995 Act, and Section 20 of the 1996 Act, and the Supreme Court has insisted that these provisions be applied.
Be under no illusion, the primary motivation behind the clamour to review the law pertaining to pre-nuptial agreements is to make them more enforceable, and in effect, to limit the judicial power stemming from the constitutional amendment providing for divorce, and provided for in the legislation. The problem for those pressing for this change is that the people having set the standard of proper provision in the divorce amendment to the Constitution, and the Oireachtas having amended the law accordingly, is that this will necessitate a constitutional amendment to the divorce provision in order to put prenuptial agreements beyond judicial variation and outside of "proper provision".
Tacky though they are, prenuptial agreements are not without some value to the wealthy in controlling and limiting their exposure in family law proceedings.
For them to be useful, a number of minimum requirements would be necessary, so that sufficient weight would be given to them during the process of the making of "proper provision". Intending spouses must both be independently legally advised, there would have to be some formal, and truthful, exchange of their respective financial standing prior to marriage, they would both have to be expressly warned of the judicial entitlement to review the agreement, and upon the agreement being executed, or during the course of the marriage or at its end, significant financial and property provision would have to be made under the agreement.
If anything, review of the present law would be better served by addressing the growing evil of the "double jeopardy" in Irish family law, where a spouse who has already obtained their "proper provision" comes back for more, merely because the other spouse's home or business has increased in value subsequently, or indeed, they win the lottery.
David Hegarty SC is a member of the Law Library and specialises in family law