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Pre-nuptial law ditched due to legal problems


Analysis: Justice Minister Frances Fitzgerald. Photo: Steve Humphreys

Analysis: Justice Minister Frances Fitzgerald. Photo: Steve Humphreys

Analysis: Justice Minister Frances Fitzgerald. Photo: Steve Humphreys

A new law to recognise pre-nuptial agreements for marrying couples has been quietly ditched by the Government, the Sunday Independent has learned.

The revelation comes as latest figures show the divorce rate continues to rise.

Farming organisations in particular have been calling for full legal recognition of "pre-nup" arrangements.

They fear the growing rate of marriage breakdown in rural Ireland is risking the break-up of traditional family farms - making them economically unviable.

Last year, Justice Minister Frances Fitzgerald carried out a "policy analysis", investigating pre-nuptial agreements.

Such a measure is regularly a precursor towards drawing up relevant legislation.

However, it has now emerged that any shake-up of the divorce laws has been put on the long finger.

Introducing new legislation would raise "legal, public policy" and possibly "constitutional" problems, according to a Department of Justice spokeswoman.

And while she said an examination of the matter is "ongoing", sources suggest it is not a primary issue for the new minority-led coalition.

A pre-nup sets out arrangements for what will happen to a couple's assets and earnings if they divorce. However, there is currently no legislation for their legal enforcement.

But it can be used as a guide in the division of land and other assets in separation cases.

They have also been favoured by a number of celebrities anxious to protect multimillion euro fortunes.

But a growing number of Irish couples have been making inquiries as to their legal viability in the context of Irish law. Rural families, in particular, are fearful of a divorce settlement, which would make the family-holding no longer financially viable.

Experts say the lack of legal standing for a pre-nup arrangement means many farmers are reluctant to transfer a farm to a son or daughter, fearing it might be "up for grabs" in the event of a marriage collapse.

Annette Sheehan, a family law solicitor in Cork, says putting pre-nuptial agreements on a legislative footing could help take some of the acrimony out of marital breakdown.

"Some farmers may require the certainty this arrangement offers by way of protecting the family farm," she said.

She suggested, in some instances, this has resulted in some couples living together rather than getting married.

"A court may uphold the terms of a pre-nuptial agreement - if it is considered to be fair to the parties involved - and which in the circumstances provides for proper provision. However, this is not always the case, and legislation would give greater certainty to the efficacy of prenuptial agreements."

Church leaders, however, warn that encouraging couples to plan for divorce before they wed could harm the Christian concept of marriage.

Catholic Communications Office spokesman Martin Long said for those of faith, marriage is a "sacrament".

"It's a life-long commitment for a man and woman who choose each other as husband and wife for better, for worse, for richer, for poorer, in sickness and in health," he said.

The Irish Farmers' Association (IFA) has been pressing for legislative change, and farm business chairman Martin Stapleton said the uncertainty surrounding the legal recognition of pre-nuptial agreements remains a "real issue". This is impacting negatively on the "timely lifetime transfer" of the family farm, he warned.

"We are supportive of measures that can remove barriers to family farm transfer, and allaying the fears of parents involved is most important. This is in line with other key policy measures required to address issues such as income security in the agricultural sector."

He says recommendations made by the Study Group on Pre-Nuptial Agreements in 2007 should be implemented by the Government.

The group proposed that pre-nuptial agreements be legalised through amendments to the Family Law Act 1995 and the Family Law (Divorce) Acts 1996.

John Comer, president of the Irish Creamery Milk Suppliers Association (ICMSA), said in circumstances where the party "leaving" has to be "bought out" of their share of the farm, it can mean that the remaining person and farm is saddled with "massive debt".

Meanwhile, new figures obtained by the Sunday Independent show that while we still have the lowest divorce rate in Europe, the marriage breakdown rate continues to rise.

Latest data from the Courts Service of Ireland shows 2,815 divorce orders were granted in 2011. By 2015, this figure had soared to 3,291.

Over the past 20 years, the number of couples calling time on their relationship reached its peak in 2007, when 3,684 divorce orders were issued by courts.

However, corresponding figures for the number of judicial separation orders fell over the same period.

Some 1,029 judicial separations were granted in 2011.

This compares with 832 in 2015.

Sunday Independent