Couples joined by pre-nups still face uncertainty in absence of legislation
Lawyers are essentially being asked to advise clients on how a judge may view such a contract 10 or 20 years into the future
Is the pen mightier than the ring?
Prenuptial agreements in Ireland appear to be on the rise even though they still lack any legal footing and don’t necessarily have a significant impact on separation proceedings.
It wasn’t so long ago that such contracts were deemed unconstitutional due to the absence of divorce, and while more people are using them today, uncertainty surrounding their effectiveness remains.
Family law practitioners will confide that rates are on the increase but because pre-nups are generally private and sensitive affairs, and because their integrity has never been formally tested before the courts, it is unclear exactly how many exist or crucially, what proportion of them have brought any influence to bear.
While there is not necessarily a culture of prenuptial arrangements in Ireland, things have been changing steadily since the introduction of divorce legislation in 1996. A common perception is that prenups are forced on love-struck couples by a worried business partners, or doubting family members.
Having greater stockpiles of personal wealth creates an added incentive for drawing up such agreements, which is perhaps why we often hear about them in relation to the stars, be it Tom Cruise and Katie Holmes; or Michael Douglas and Catherine Zeta Jones. Stephen Spielberg’s divorce from Amy Irving in 1989 cost him nearly €60 million despite a judge controversially vacating a pre-nup written on a napkin.
“I think they are increasing [in Ireland] Because there is just that bit more of an awareness,” said Donagh McGowan, family law solicitor and partner at Mason, Hayes and Curran. “The vast majority is under the radar, so nobody can say for sure what’s happening. Certainly 10 years ago they were very rare. Anecdotally they are on the increase but it’s impossible to verify that. [It is] from a very low base. And they are certainly an exception.”
The latest Central Statistics Office figures, for 2011, record a total of 3,363 divorce applications, 2,819 of which were granted. For judicial separation applications, that picture was 1,391 and 1,049.
In 1997, the first year in which the legislation operated, there were 95 divorces granted, increasing to 1,421 in 1998 and peaking at 3,684 in 2007. Since then, and arguably influenced to some degree by the recession, the number has continued to fall to just 2,819 in 2011.
The Catholic lobbyist Iona Institute recently reported a 500 per cent increase in marriage breakdown since 1986, affecting almost a quarter of a million people.
McGowan does not believe, however, there is a direct relationship between breakdown rates and those who will seek to use a pre-nup as a financial failsafe.
“The driver of pre-nups is something that exists before someone enters into a marriage. They are trying to protect something and I don’t think there is a correlation with divorce rates.”
Historically there was never any point in having such a contract before divorce became possible – the legal position at that time was that such an agreement would be unconstitutional.
Current family law leaves it to the courts to decide “proper provision” of finances in cases that end up in court. Here, at best, a prenuptial agreement may be taken into account as one of a number of factors that might shape the terms of a court’s decision on division of interests. However a pre-nup has never been the focal point of a specific, individual legal challenge and so nobody can be sure exactly how each will affect an outcome.