Prenuptial agreements 

There has been no specific case in Ireland on Pre-Nuptial Agreements, enforcing the terms of such an Agreement. However, there is a general view that such an agreement may be enforceable and may carry weight in Judicial Separation or Divorce proceedings. Such agreements probably would be recognised by the courts as a factor in family law proceedings, given that there is power to vary ante-nuptial agreements in both Judicial Separation and Divorce proceedings.  There can be no guarantee that the Court hearing a Judicial Separation or Divorce application would believe itself to be bound by the terms of a Pre-nuptial agreement.  If a pre-nuptial agreement makes “proper provision” for each party, it is more likely to be persuasive on the Court.

Section 113 of the Succession Act, 1965 recognises the right of spouses to waive succession right entitlements in pre- and post-nuptial agreements.

 

Nevertheless, where a couple intending to marry wish to enter into a Pre-Nuptial Agreement, to maximise the possibility of it being followed and applied by a court in Irish proceedings, the following should be met:

 

  • Both parties should obtain independent legal advice

  • Both parties should make full disclosure to one another of their respective financial circumstances

  • The terms of the agreement should be fair to both parties.

  • The parties should not be under duress to sign the Agreement

  • The parties should be of equal bargaining position 

  • They should be entered into not less than 28 days prior to the date of marriage

  • The agreement should be in writing, be signed by each party, their signatures witnessed 

  • The agreement should comply with contract law

  • The agreement should also provide for periodic reviews every number of years, if the parties subsequently have children and/or if there is a major change in circumstances.