I love my fiancee, but is a pre-nup worth getting?

Our resident solicitor tackles this sensitive subject

A pre-nuptial must be fair and make proper provision for both parties, for a court to enforce its contents
A pre-nuptial must be fair and make proper provision for both parties, for a court to enforce its contents

Dear Karen,

I’m getting married next year, to a girl I’ve been going out with for seven years. We’ve been living together for the past three years, in a rented house in the local town. She’s a primary school teacher.

We’re building a house on my parent’s farm, which I am due to inherit…I’m currently in a farm partnership with them. We’ve had a savings account for the past three years and that is paying for the house along with a small mortgage we took out.

I spend most days in my parent’s house, as I’m working on the farm full time and one day over dinner my mother asked me if we were going to have a pre-nuptial. I hadn’t considered it before, but the farm has been in the family for a number of generations, and I think they are concerned about their own security – they are in their seventies.

Is a pre-nuptial worth getting?

Dear Reader,

Congratulations this is great news. A wedding is filled with fun and excitement, make the most of it.

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Your question regarding the validity of pre-nuptial agreements in Ireland is a very interesting one. The issue of pre-nuptials has been in the press recently from the farming lobby. The farming community believes that the issue of assets should be resolved before they meet any would-be spouses for fear that meeting the wrong partner could in fact break up the farm.

If a marriage does go wrong and parties end up separating and going through a judicial separation and divorce proceedings, a divorce will only be granted in this jurisdiction if the Court is satisfied that proper provision has been made for both parties involved.

Your question involves a certain degree of complexity in that your assets are very closely linked with your parents, so the question of whether a pre-nuptial is worth getting generally and specifically in your circumstances must be answered in two parts.

Under Irish law, while technically pre-nuptials do not have legal force, they can be regarded by judges as being persuasive in the context of a Judicial Separation or divorce when it comes to dividing up the marital assets. It is important to note that just because the parties have signed a pre-nuptial agreement, this does not mean that the marital assets will be divided up according to the contents of the pre-nuptial agreement.

For the contents of a prenuptial agreement to be enforced by a judge, the pre-nuptial agreement must make proper provision for each of the parties involved in the proceedings.

An example of a prenuptial that will never be enforced by a judge is the following situation; if a man marries a woman and he has a house worth €1m and he has €500,000 in the bank and makes a prenuptial agreement with his proposed wife that states that in the event of divorce the wife shall not be entitled to any share of the house or the money. This will not be enforceable as it is unfair and obviously does not make proper provision for the wife in that case.

If you wish to make a prenuptial that stands a good chance of being utilised and enforced by a Court the pre-nuptial should be updated every five years or after a big event such a having a baby or inheriting significant assets. The pre-nuptial must be fair and make proper provision for both parties, for a court to enforce its contents. It is worth remembering that the Court has the power to vary aspects of the pre-nuptial agreement.

Farm Partnership

You say that you are in a farm partnership with your parents, so it is worth discussing the financial security that this potentially offers. It should be noted that when forming a farm partnership, especially with family members, both tax advice and legal advice should be obtained.

It is unclear if you are due to inherit the entire farm along with your parents’ house but if your parents are worried about their own security then they could also ensure that their house is not transferred over to you and does not form part of the farm partnership and so is a separate and distinct asset.  

Like I said in the previous paragraph, in any divorce and separation proceedings a Court must make proper provision for both spouses.

Therefore, in the normal course of things the Court will only order that the assets belonging to each person be divided up to make proper provision for both parties. What this means is that if you and your parents have a farm worth €500,000 and you are entitled to a 50pc share of that farm and then it is only your share of farm partnership that shall form part of the martial assets.

If there are enough assets to make proper provision for the parties in a separation context then the Court will not look beyond the farm partnership. However, in rare circumstances (and this will very much depend on the circumstances of each individual case) if the Court has no way to make proper provision for both parties for example if one of the parties can’t work etc and there is a farm partnership in being the Court can order that the partnership be dissolved.  

Karen Walsh, of Walsh & Partners, Solicitors, comes from a farming background and is a solicitor specialising in agricultural law, land law and renewable energy and is author of ‘Farming and the Law’ available from www.claruspress.ie. The firm also specialises in personal injuries, employment law and family law. She has offices in Dublin and Cork. For further information please contact 01-602000 or 021-4270200. 

Email: info@walshandpartners.ie

Web: www.walshandpartners.ie

Disclaimer: While every care is taken to ensure accuracy of information contained in this article, Solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.  

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