Farm Ireland
Independent.ie

Monday 20 November 2017

Premarital agreement can be an act of love, mapping out a safe exit strategy for both sides

A prenuptial agreement is essentially a formal agreement which can be drawn up between you and your partner. It sets out how you would divide your assets if you decide to divorce in the future. Stock picture
A prenuptial agreement is essentially a formal agreement which can be drawn up between you and your partner. It sets out how you would divide your assets if you decide to divorce in the future. Stock picture
Karen Walsh

Karen Walsh

You worked up the nerve. You popped the question and your partner said the magic word "yes". You are both excited for the upcoming wedding, but there are many issues you must agree on before walking down the aisle.

Where should you get married? What flowers should you use? Where will you go on honeymoon? There are also other practical considerations that many couples should think about. Should you get a prenup?

Farmireland.ie reveals a staggering 72pc of farmers are in favour of prenuptial agreements. That may come as a surprise, as farmers may be viewed by some as quite conservative and traditional. However, a farmer's circumstances are unique to most.

Many farmers are reluctant to transfer the farm to their son or daughter for fear that it might form part of the pot of assets "up for grabs" in the event of a marriage breakdown.

Farms that have been in families for generations could form part of a divorce settlement. Land in rural Ireland means more than just a livelihood to most people. It forms part of their identity, history and values. To lose the land is a shameful thing. People are living longer and very often the parents are working on the farm well past retirement. In many cases, the parents' family home is also often located on the farm.

So, what is a prenup exactly?

A prenuptial agreement is essentially a formal agreement which can be drawn up between you and your partner. It sets out how you would divide your assets if you decide to divorce in the future.

The agreement can serve as an inventory of assets and debts owned or incurred by each spouse prior to marriage, can convey interest in property between the parties, or dictate that neither spouse will acquire an interest in each other's property or inherited property.

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Although there is no set formula for a prenuptial agreement, the kind of agreement used by most couples would be most straightforward, and state that the property owned by each party prior to marriage will remain theirs should the relationship end, and dictate what would happen to property acquired during the marriage.

A premarital agreement can protect the inheritance rights of children from a previous marriage.

If you have your own farming business, a premarital agreement offers protection so that the business is not divided and subject to the control or involvement of your former spouse upon divorce.

Prenups are particularly useful in situations where there is a family business, people in their 30s or older with any substantial assets, children, or a former spouse.

So the big question is whether a prenuptial agreement is legally binding in Ireland? Well, the correct answer is, it depends.

To ensure prenuptial agreements are taken into account by a judge in the event of a family breakdown there are certain elements that must be put in place. The agreement must be in writing. It must be signed and witnessed no less than 28 days in advance of the wedding. Both parties must be independently advised. There must be full and frank disclosure of all assets and liabilities from both sides in advance of signing and there must be no duress on either party to sign.

A prenup has to be considered fair at the time it's enforced. For example a spouse may agree she won't take anything from a farming business that's worth very little at the time she and her husband sign the prenup, but by the time the couple divorce the farming business has become very lucrative.

Neither party should feel pressurised into signing the agreement.

Parents and parents-in-law should not become involved otherwise it may be viewed that either or both parties to the agreement may have been pressurised into signing the agreement.

The paramount advice to a client would be to speak with their partner, be honest with him or her as to why they wish to enter into such an agreement.

The word 'prenup' often brings up negative connotations and emotions in the relationship realm. But, should it? Moreover, rather than 'doomsaying' documents that foretell the end of a marriage, they could be viewed as an act of love mapping out a safe exit strategy for both parties and settling financial issues without a protracted and bitter legal battle.

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.

Irish Independent





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