Prenuptial agreement

Question: I am thinking about getting married next year and I am wondering whether I should have a prenuptial agreement.  Is such an agreement enforceable under Irish Law?

Answer:  It is easy to forget when one is getting married that you are entering into a binding legal contract with certain implied terms and conditions.  Like any contract, it is possible to reach agreement on varying these terms but because the Irish Constitution recognises the family as the natural and primary unit in society and also pledges to protect the institution of marriage, it was commonly thought that prenuptial agreements were ineffective in Ireland.

However with the introduction of divorce and the complexity of modern relationships it is now generally agreed that prenuptial agreements may well be enforceable depending on the circumstances.  One must remember that an application for divorce requires a court to consider whether proper provision has been made for each party and it is unlikely that a court will uphold any prenuptial agreement which prevents this. 

For the vast majority of couples a prenuptial agreement is not necessary and typically one would only see a prenuptial agreement where one of the parties has very substantial assets.  It may also be appropriate to have an agreement where someone is remarrying and wishes, for example, to protect the ultimate transfer of assets to the children of a prior relationship.

It is essential that any intending spouse who is being asked to sign a prenuptial agreement does so on the basis of informed consent.  Failure to disclose all assets or any element of duress in signing the agreement will almost certainly render it unenforceable.  In fact it would be best if the intended spouse received independent legal advice before signing any such agreement.

The information contained in this article is for general information purposes only and does not constitute legal or other professional advice.  Specific legal advice should be sought on any particular matter.

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