A report commissioned by the Government has proposed that prenuptial agreements be formally recognised in Irish law for the first time, The Irish Timeshas learned, write Carl O'Brien& Miriam Donohoe.
The report, which was presented to the Cabinet yesterday, says prenuptial agreements should be used as a guide when a court is deciding on division of assets in a marriage break-up.
But judges should also be allowed to take into account any changes in a married couple's material circumstances where a prenuptial agreement exists, it adds.
Prenuptial agreements have featured increasingly in Irish marriages following the introduction of divorce in 1996, and while they are not outlawed they still have no legal basis in Irish law and are not legally enforceable.
The High Court and Supreme Court have not yet delivered a judgment on the status of such agreements in law.
Drawn up by a group headed by leading family law expert, senior counsel Inge Clissman, the report is expected to be published by Minister for Justice Michael McDowell in the coming days.
The report says any legislation introduced to allow for prenuptial agreements should be in accordance with the Constitution.
While calling for agreements to be enshrined in law, it stresses that a judge should not be restricted by an agreement, and account should be taken if the financial circumstances of a spouse has changed significantly from the making of the agreement.
Mr McDowell has described the present situation and "grey area" surrounding prenuptial agreements as unsatisfactory and said the problem would not go away.
He told the Dáil last October that recognition of prenuptial agreements could help to resolve problems after a marriage breaks down.
He said he saw reasons why people would enter such agreements, and believed most people would see there was a middle ground between a public policy prohibiting them, and a situation where they must be the determinants of the outcome of marriage breakdown, regardless of circumstances.
The terms of reference of the expert group were to report on the operation of the law since the introduction of divorce in relation to pre-nuptial agreements, taking into account constitutional requirements.
As well as Ms Clissman, the members of the group were: Ross Aylward, LLB; Marie Baker SC; Margaret Bannon, advisory counsel, office of the Attorney General; Stephanie Coggans, managing solicitor at the law centre, Legal Aid Board, Monaghan; Louise Crowley, solicitor and lecturer at the faculty of law, UCC; and John Kenny of the Department of Justice.