Farm Ireland

Tuesday 24 April 2018

Tide is turning in favour of €1,500 'pre-nup' deals

The general advice is that you should enter the pre-nuptial agreement well in advance before the wedding
The general advice is that you should enter the pre-nuptial agreement well in advance before the wedding

Theresa Murphy

It is clear that farmers of both sexes and all ages are now in favour of pre-nuptial agreements being recognised.

The Irish Creamery Milk Suppliers Association and the Irish Farmers' Association have called for 'pre-nups' to be legally binding and recognised by the Irish courts - although the Catholic Church remain in opposition, maintaining the view that marriage is for life.

Justice Minister Frances Fitzgerald has begun investigating the potential impact of introducing laws recognising pre-nups. It would seem that the tide is turning.

With divorce rates increasing, a study carried out by Macra na Feirme on 'Land Mobility and Succession in Ireland' identified that keeping the family farm within the family is a concern for those handing on the farm to the next generation.

A pre-nuptial agreement is a contract entered into by a couple before they get married. They make provision for financial and property matters in the event of the breakdown of the marriage. They can include issues such as lump sum payments, pensions, maintenance and custody for children.

A pre-nuptial agreement can give both parties peace of mind and can reduce conflict later. The difficulty is that Irish courts are not bound to enforce them.

However, legal opinion sees no reason why courts should not take pre-nuptial agreements into account when making provision for spouses and children.

It is essential to note if you are considering entering into a pre-nuptial agreement that both parties receive independent legal advice.

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Also, the court would also have to be satisfied that each party had disclosed all of their assets before the agreement was reached.

The Report of the Study Group on Pre-Nuptial Agreements (2007) recommended that legal provision should be made to require the courts to take regard of pre-nuptial agreements when making orders in separation and divorce proceedings.

While this legal provision has not yet been made, many judges are already taking pre-nuptial agreements into account, where they exist. It is likely that at some future time there will be legislation introduced to give effect to the recommendations of the study group.

Many legal professionals view that pre-nuptial agreements are most likely to be given effect by the courts in the case of a separation after a relatively short marriage or where the circumstances have not changed greatly since the marriage began.

You should also bear in mind that there is something similar to a pre-nuptial agreement for qualified co-habitees (if you live with someone for a period of two years if you have a child together, or a period of five years if you do not).

This type of agreement is specifically provided for under Irish law at present, and they are enforceable.

The general advice is that you should enter the pre-nuptial agreement well in advance before the wedding - ie, months ahead.

Initial enquiries indicate that such agreements can be drawn up for less than €1,500.

This article is intended as a general guide only. You should seek professional advice in relation to individual circumstances.

Theresa Murphy is a barrister based in Ardrahan, Co Galway

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