Family Law: Prenuptial agreements

A prenuptial agreement is not legally binding, but it can serve as a guide for the courts in judicial separation and divorce cases. Designed to determine arrangements for a couple’s children and property in the event of a marriage breakdown, a prenuptial agreement will not bind a judge, but if it makes adequate provision for each party, it could prove persuasive.

Why Should You Get a Prenuptial Agreement?

HOMS Assist will guide you through the prenuptial agreement process, should you and your partner decide to draw one up in advance of your marriage. If, for example, one party is in line to inherit a substantial family business or farm, such an agreement can be useful for informing the judge of the couple’s original intentions, should the marriage end in judicial separation or divorce.  Nonetheless, Irish law makes no provision for prenuptial agreements apart from sections 113 and 113A of the Succession Act 1965 (as amended) which allow a spouse or a civil partner to renounce their legal right share in a pre-nuptial agreement. Furthermore, a judge is likely to set aside your prenuptial agreement if it fails to make adequate provision for children or a vulnerable spouse. Securing expert legal advice is vital to ensure the validity of your prenuptial agreement.

Is Your Prenuptial Agreement Enforceable?

If the enforceability of a prenuptial agreement becomes a court issue, the judge may consider the following:

  • Both parties must have completed the agreement before their marriage.
  • It must confirm explicitly that it is designed to deal with what happens should the marriage end.
  • Both parties should enter the agreement having made full financial disclosure.
  • Both parties must obtain separate, independent legal advice.
  • Assets should be divided reasonably, in light of all circumstances
  • Should circumstances change significantly, the agreement must be subject to review.

Note: The court will refuse to grant a divorce if it is not satisfied that all parties are fully and properly provided for.

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