If a couple want to complete a pre nuptial or post nuptial agreement, give careful consideration to their financial circumstances and other circumstances and if they both take independent legal advice and without any apparent pressure or any other noteworthy circumstances, enter into an agreement, which is carefully negotiated and finalised – should this agreement be regarded as binding on an Irish court?
A growing number of couples are completing agreements before they marry and a lesser number are completing them shortly after they marry setting out what they would like to see happen in the event of a separation.
Are such agreements binding in Ireland? The short answer is no but the slightly longer answer is that while they might not be binding, but if they are carefully prepared and provide fair and proper provision for both sides, then they will at the minimum be extremely persuasive.
In the event of divorce and even in the event of separation, a judge will need to be satisfied that full and proper provision has been made for both sides but in my view and I would expect in the view of the judiciary, the best persons to decide whether or not full and proper provision has been made are the parties themselves and if they can reduce an agreement to writing and have the benefit of independent legal advice then I do not see any reason why the vast majority of such agreements should not form the substantial body of any order that might be made granting the parties either a judicial separation or a divorce.
In my view, these agreements should be encouraged because they almost certainly would reduce the possibility of litigation after the event. While they might not be binding, they would be persuasive and in my view they would be persuasive on the parties themselves as well as a judge and if the parties can be persuaded to settle their differences amicably, this has to be encouraged.
When advising a client whether or not to complete a postnuptial agreement or an prenuptial agreement, a number of factors have to be taken into account. Marriage in Ireland is constitutionally protected and historically the courts have been reluctant to recognise agreements which on the face of them, could be argued are encouraging couples to separate. This argument in my view carries less and less weight but it is still there. The argument carries slightly less weight in the Circuit Court where most separations and divorces are heard and where matters are dealt with on a more practical, down to earth level. In the Supreme Court however, where matters of constitutional law and matters of more academic interest are dealt with, the argument still carries weight.
The courts in Ireland can only make a divorce order provided the judge hearing the case is satisfied that “full and proper provision” has been made for both parties. The judge therefore is quite entitled to say that he/she will disregard the terms of any prenuptial agreement or postnuptial agreement and will make his/her own determination as to what constitutes full and proper provision. That is the theory but in practice I am quite certain that the vast majority of judges would place enormous weight on an agreement freely entered into, which on the face of it divided fairly and reasonably, the assets available to the parties.
It must also be taken into account that the date when the division of assets is to be assessed is the date of the hearing and not the date of the completion of the agreement. However, if the judge feels that circumstances have not changed to a considerably degree then the terms of the pre/postnuptial agreement will be persuasive.
I am often told by clients that they did not refer the existence of particular bank accounts to me because that “was the inheritance I received from my father”. Lotto wins and inheritances are regarded by many people as being entirely personal and should not form part of the “marital pot” when couples separate. In my view this is entirely incorrect. A judge may well say that the inheritance belongs to you but in my experience, the judge will take it into account and if there had been no inheritance, the judge might have divided the family home 50/50 but given that there was an inheritance the judge might instead divide the family home 80/20 in favour of the person who did not receive the inheritance. This is clearly sensible. Having said that, if the parties are already independently wealthy and if one of them comes into what might be regarded as a windfall, then a judge would probably not interfere with that windfall and might not even take it into account when considering the general distribution of assets. These cases however are rare in Ireland.
In my opinion, most courts will regard pre and post nuptial agreement as very persuasive, provided they appear fair on their face and provided all parties have been separately and independently legally advised and provided there has been no substantial change in circumstances since the agreement was entered into. If therefore the agreement is kept under review and is brought up to date to reflect changing circumstances (such as the birth of children and the fact that one or more of the parents might give up their work to look after children), then the agreements stand a greater chance than ever of forming the vast bulk of the provision of any ultimate court order. My final thoughts on this are that prenuptial agreements and postnuptial agreements may not be legally binding in themselves but in my view, they are next best thing.
A growing number of couples are completing agreements before they marry and a lesser number are completing them shortly after they marry setting out what they would like to see happen in the event of a separation.
Are such agreements binding in Ireland? The short answer is no but the slightly longer answer is that while they might not be binding, but if they are carefully prepared and provide fair and proper provision for both sides, then they will at the minimum be extremely persuasive.
In the event of divorce and even in the event of separation, a judge will need to be satisfied that full and proper provision has been made for both sides but in my view and I would expect in the view of the judiciary, the best persons to decide whether or not full and proper provision has been made are the parties themselves and if they can reduce an agreement to writing and have the benefit of independent legal advice then I do not see any reason why the vast majority of such agreements should not form the substantial body of any order that might be made granting the parties either a judicial separation or a divorce.
In my view, these agreements should be encouraged because they almost certainly would reduce the possibility of litigation after the event. While they might not be binding, they would be persuasive and in my view they would be persuasive on the parties themselves as well as a judge and if the parties can be persuaded to settle their differences amicably, this has to be encouraged.
When advising a client whether or not to complete a postnuptial agreement or an prenuptial agreement, a number of factors have to be taken into account. Marriage in Ireland is constitutionally protected and historically the courts have been reluctant to recognise agreements which on the face of them, could be argued are encouraging couples to separate. This argument in my view carries less and less weight but it is still there. The argument carries slightly less weight in the Circuit Court where most separations and divorces are heard and where matters are dealt with on a more practical, down to earth level. In the Supreme Court however, where matters of constitutional law and matters of more academic interest are dealt with, the argument still carries weight.
The courts in Ireland can only make a divorce order provided the judge hearing the case is satisfied that “full and proper provision” has been made for both parties. The judge therefore is quite entitled to say that he/she will disregard the terms of any prenuptial agreement or postnuptial agreement and will make his/her own determination as to what constitutes full and proper provision. That is the theory but in practice I am quite certain that the vast majority of judges would place enormous weight on an agreement freely entered into, which on the face of it divided fairly and reasonably, the assets available to the parties.
It must also be taken into account that the date when the division of assets is to be assessed is the date of the hearing and not the date of the completion of the agreement. However, if the judge feels that circumstances have not changed to a considerably degree then the terms of the pre/postnuptial agreement will be persuasive.
I am often told by clients that they did not refer the existence of particular bank accounts to me because that “was the inheritance I received from my father”. Lotto wins and inheritances are regarded by many people as being entirely personal and should not form part of the “marital pot” when couples separate. In my view this is entirely incorrect. A judge may well say that the inheritance belongs to you but in my experience, the judge will take it into account and if there had been no inheritance, the judge might have divided the family home 50/50 but given that there was an inheritance the judge might instead divide the family home 80/20 in favour of the person who did not receive the inheritance. This is clearly sensible. Having said that, if the parties are already independently wealthy and if one of them comes into what might be regarded as a windfall, then a judge would probably not interfere with that windfall and might not even take it into account when considering the general distribution of assets. These cases however are rare in Ireland.
In my opinion, most courts will regard pre and post nuptial agreement as very persuasive, provided they appear fair on their face and provided all parties have been separately and independently legally advised and provided there has been no substantial change in circumstances since the agreement was entered into. If therefore the agreement is kept under review and is brought up to date to reflect changing circumstances (such as the birth of children and the fact that one or more of the parents might give up their work to look after children), then the agreements stand a greater chance than ever of forming the vast bulk of the provision of any ultimate court order. My final thoughts on this are that prenuptial agreements and postnuptial agreements may not be legally binding in themselves but in my view, they are next best thing.
Kevin Brophy
I agree that these agreements must be encouraged. They are a haven. The blog post is very good. Thanks a lot.
ReplyDeletePre-nuptial agreement Lawyers Sydney
I enjoyed reading your article :) Please continue publishing helpful topics like this.
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