Pre-Nups …. What’s the update in 2025 ?
For any legal firm dealing with Family Law Matters they will receive enquiries in relation to
“What is the story about Pre-Nups” .
Prenup’s are not automatically binding but in Ireland the Courts generally consider them as long as they meet certain requirements.
These are that the parties had
- independent legal advice,
- had fully disclosed their finances
- the Agreement was not signed under any undue pressure.
It stands to reason they should be considered and advised on well before any marriage ceremony.
The reasons they will never be fully enforceable in Ireland is twofold.
1.Firstly our Constitution provides for the protection of the contract of Marriage so if they were to become legally binding you would be contracting to opt out of a marriage agreement which you already have contracted to enter into freely.
2. The 2nd reason is more practical in that Courts prioritise fairness especially if there are children involved and Judges are reluctant to lose their scope for discretion. Courts want to ensure that no one is left in financial difficulty especially if children are involved.
If there is an inequality in the levels of wealth there is a possibility that the party with the assets who is the one seeking the agreement in the 1st place may pressurise signing of it in terms that may or may not be fair. Obviously if an agreement was signed and then as time passes children are born provision must be made in the original agreement for that eventuality.
While in Ireland we have come to create substantial wealth at a certain level of society the parties looking for Pre-Nups clarity relates to the transfer of farming properties onto the next generation. Some years ago the Minister for Justice was lobbied by the farming organisations to consider the introduction of these agreements for the sole purpose of protecting the transfer of farmland to the next generation. The arrival of a potential spouse into a farming family can be a cause of anxiety if they do not understand the farming life and in the event of a subsequent separation or divorce the entitlement of the spouse relating to land can be a difficult area for owners and their families to consider.
It seems that particular area of law is not a priority of the present government to ensure that these agreements would become law.
It may be the legislature is happy to leave the Courts to decide in each case what is fair to the parties .
In summary the production of a Pre-Nup agreement as part of a Divorce hearing may be considered however the final decision is with the Judge as to what represents fairness in any particular case.
If there’s anything in this article which financial advice is needed on please contact us to discuss.