Tuesday 21 November 2017

Of pre-nups, a Mini and pornography

Pre-nup agreements are all the rage these days but not so very long ago in Ireland, as legal records show, wives were regarded as the property of their ­husbands in law.

How the Roche case was reported
How the Roche case was reported

Damian Corless

We've been long familiar with the term 'pre-nup', but 'post-nup' is new to most of us. It entered the water-cooler chit-chat when Katie Holmes was pictured cuddling with actor Jamie Foxx five years after splitting from Tom Cruise. The pair have been an item since 2013, but have had to stay undercover because of a five-year no-dating divorce clause reportedly demanded by Cruise.

Meanwhile, our stateside cousins have already moved on to 'lifestyle clauses'. These clamp the behaviour of spouses, governing anything from weight gain to putting a stopwatch on quality time. Catherine Zeta-Jones, for instance, is supposedly entitled to fine husband Michael Douglas $5m if caught cheating, while Priscilla Chan is said to have obliged Mark Zuckerberg to spend at least one night and 100 minutes with her weekly.

Anne Keane of Pierce Fitzgibbon solicitors in Listowel confirms that pre-nups are on the rise. "With so many celebrities publicising them, it's planting a seed with many people," she says. "And it's not always those with assets to protect. Given the current state of many people's finances, it's often the case that a spouse-to-be wants to make it crystal clear they don't want to take on a partner's debts."

Keane says that pre-nups are "more prevalent in the farming community". She elaborates: "Land is an integral aspect of Irish society and people might understandably want to protect a farm that's been in the family for generations against the unknown quantity of a new spouse."

When it comes to the legal niceties, however, in Ireland pre-nups are barely worth the paper they're written on. "There's no legislation covering them," says Keane. "A judge might be persuaded by the content of a pre-nup, but it's at their discretion."

The Irish husband of 45 years ago didn't need to bother dreaming up elaborate restraints on his wife, because he literally was her ball-and-chain and she his property.

This was laid bare in Dublin's High Court in 1972. The nation was scandalised by the fact it had gone to court at all. In our secretive society you didn't wash your dirty laundry in public. But the litigant was Werner Braun, a German sophisticate with little regard for Irish pieties.

In the dock was Stanley Roche. His family empire, Roche's Stores, had been part of what we were since 1901. Under the law of Criminal Conversation, Roche was charged with 'debauching' Braun's wife, Heidi. The court heard Roche had "set up in style" with Heidi. "He lives with her and calls her Mrs Roche and she has borne him a child."

Werner grew suspicious shortly after Heidi started working for Roche as a decorating consultant. Roche's Christmas present to his employee of six months, a Mini Cooper, seemed excessive. That Christmas, Braun opened an unsigned card calling him a 'pimp'. It featured Santa and another figure in a car. Heidi retreated to Germany to gather her thoughts. When she returned, Werner went to her hotel room.

There, the court heard, "he found contraceptives and a pornographic book". So "he struck her". Shirking from scandalising its readers with the words "contraceptives" and "pornographic", this and other papers substituted "the physical evidence of the intercourse".

Keeping it coy, the sex case of the century was fig-leafed with the most dowdy headlines imaginable, including 'German-born Agent Sues Cork Director', and 'Husband's Action For Damages Against Businessman'.

Having found "the physical evidence of the intercourse", Werner gave Heidi a belt with his fist, explaining: "I would not tolerate this, that she was behaving as Stanley Roche's whore." His counsel added: "No man of spirit would have done otherwise."

Werner's chivalric image was soon in tatters, as two young women told the court how he'd seduced them. The judge told the jury that under the law of Criminal Conversation, they had no verdict to deliver. Werner had been deprived of his property and must be compensated. The judge stated, as reported by this paper: "In this country, a wife is regarded as a chattel, just as a thoroughbred mare or cow, and the jury is concerned merely with compensating Mr Braun for the value of the loss of his wife and the damages to his feelings."

That value was put at £12,000, the price of a four-bedroom house in Dublin. The public outcry barely registered a single decibel. Just one editorial suggested scrapping Criminal Conversation, adding that the only possible "feeble" reason for keeping it was "that it might lessen the chances of violence. An injured husband uses the courts instead of a club". A woman's place was truly in the wrong.

Rejecting scrappage, Justice Minister Des O'Malley told the Dáil that any gender inequality in the law was minimal. Ireland joined the EEC (EU) the following year and the law change was forced upon our legislators in 1976.

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