Seven out of ten farmers want 'pre-nup' agreements
Published 26/04/2015 | 02:30
Farm families are being torn apart because there is no legislation surrounding pre-nuptial agreements and their enforceability in law, farming organisations have said.
Justice Minister Frances Fitzgerald has now begun investigating the potential impact of introducing laws recognising pre-nuptial agreements.
Pre-nuptial agreements are becoming increasingly common, particularly among farm families who fear the loss of "the home place" in the event a marriage ends and assets are divided by the courts in judicial separation or divorce proceedings.
They also fear being saddled with massive debt as a result of having to "buy-out" the spouse who marries into a farm in the event of the marriage failing.
At the moment, the enforceability of existing pre-nuptial agreements in the courts is decided on a case by case basis and family law judges are not bound to divide the assets according to these agreements.
A recent survey showed that seven out of ten farmers of both sexes and all ages are now in favour of pre-nupital agreements being recognised - despite opposition from the Catholic Church which says pre-nuptial agreements could damage or undermine the belief that marriage is for life.
A pre-nuptial agreement is entered into by an engaged couple setting out the division of their assets in the event that they subsequently decide to separate or divorce. In order to be valid, both parties must make full disclosure of all their assets and each person must obtain independent legal advice about the agreement.
Both the Irish Creamery Milk Suppliers Association (ICMSA) and the Irish Farmers Association (IFA) have called for 'pre-nups' to be legally binding and recognised by the Irish courts.
IFA President Eddie Downey warned Ms Fitzgerald in a letter that there are cases where parents delay transferring ownership of land to their successor because of deep worry about the consequences of marriage break-up.
ICMSA President John Comer has consistently argued in favour of pre-nups.
"In a situation where it has taken generations of back-breaking hard work to assemble a viable farm, it's very easy to understand a situation where the farm family wants to safeguard the farm that their forefathers spent their lives working on and improving," he has said.
Analysis of significant family law judgments in the High Court, Supreme Court and Court of Appeal (see below) shows that division of land assets has been at the centre of some of the most divisive and expensive cases to come before the courts.
Mr Comer has said the idea that a man or woman can marry into a farm and then walk away with half the land in the case of a divorce or judicial separation fills farming families with horror
"That scenario, or even the possibility of that scenario, can cause huge tension within farm families and the notion that such a disaster for the whole family can be avoided by setting in place a pre-nuptial agreement will be extremely popular with farm families," he said.
Although no decision has been taken yet on bringing in a new law, Ms Fitzgerald has begun investigating what impact pre-nups would have on families.
A "policy analysis" of all the issues involved is under way in the Department of Justice - a first move towards possible legislation.
The IFA believes recommendations made by the Study Group on Pre-Nuptial Agreements in 2007 should be implemented. The group proposed that pre-nuptial agreements be legalised through amendments to the Family Law Act 1995 and the Family Law (Divorce) Acts 1996.
However, the Catholic Church is opposed to pre-nuptial agreements.
Spokesman Martin Long said changes in family law could, in effect, allow couples to set the terms of possible separation before they get married.
"Irish bishops support the institution of marriage as a life-long commitment, where a man and woman choose to commit to each other as husband and wife 'for better, for worse, for richer, for poorer, in sickness and in health, until death do us part'," he said.