Pre-nuptial agreements increase in popularity but have no status in eyes of Irish law

Pre-nuptial agreements must qualify as the least romantic aspect of marriage, based as they are on the potential break-up of the relationship that presumably began with romantic intentions.

And if that isn't enough to make an engaged couple shiver, perhaps the considerable legal fees that go into drafting such agreements might also be a reason for restraint. "Pre-nups" are complicated creatures, drawing from property, tax and company law, and require a significant investment of time on the part of the couple and the lawyer, who bills by the hour.

The idea of drafting what is essentially a business agreement before entering into marriage has not become widespread in the Republic, which probably makes sense since they have no status in the eyes of Irish law. Confused? So is the law.

"They're void," says Mr Paul Ward, law lecturer at UCD, admitting, however, that the waters might still be somewhat muddy in practice.

The most recent case in law testing a pre-nuptial agreement dates from 1830, when the courts found that a married couple could not legally agree to separate at a future date.

Since this 1830 technicality is the very basis of a pre-nuptial agreement - the couple must separate in order for it to apply - the case stands as precedent, despite its age. Mr Ward believes that its spirit would still be followed by the courts today, if only on public policy grounds, since conditional marriage is not deemed to be acceptable.

However, the popularity of pre-nuptial agreements is slowly growing, especially for divorced couples who are getting married for a second time.

Mr David Bergin of O'Connor Bergin Solicitors in Dublin has seen this development, having personally drafted more than 10 pre-nups.

"It generally arises where people have gone through one break-up and are getting married again," he says. "I would get quite a few queries about them."

Although Mr Bergin makes clients aware of the legal doubts surrounding the agreements, he says many choose to go proceed. He says that even if a court does not uphold what it views as an intention to sever a relationship, there's a likelihood that it will take account of the parties' professed intentions at the time of marriage.

"It will have an impact where there are assets under discussion," he says, pointing out that there are both negative and positive aspects to the agreements.

They may be unromantic, he says, but planning is often what makes a relationship work. Equally, while business morals may not be the best solution to marital difficulties, they may create a mutually beneficial result.

"It might concentrate people's minds," he says, recalling how when one wife-to-be was sent the draft pre-nup, she was so appalled that the wedding was cancelled. It's unclear whether the lack of romanticism or lack of return was the motivation.

But such problems shouldn't affect the wedding plans of most people, says Mr Bergin, highlighting the fact that to draw up a pre-nup, the couple need to have some assets worth dividing.

"Your average PAYE worker wouldn't really have much need for one," he said.