Celebrity gossip such as Sofia Vergara and Joe Manganiello’s divorce was not something I ever thought would be inspiration for Aislinn’s Articles. However, I was reading into their apparently ironclad prenup and it got me thinking about prenups in Ireland.
A prenuptial agreement (prenup for short) is a written agreement signed by both parties in advance of their marriage which sets out how your assets should be divided if the marriage ends in divorce. There is no legal basis for a prenuptial agreement in Ireland and if an application is made for divorce, a Judge may decide to not even open the prenuptial agreement. The Irish Courts have a constitutional obligation to ensure they are satisfied that proper provision is being made for both spouses and their children. The Courts therefore have a wide discretion when it comes to a divorce. There is huge scope given to a Judge to make whatever orders they deem appropriate in order to ensure proper provision is made for both parties. The Court will not agree to have this discretion fettered by an agreement that came into existence long before the circumstances existing at the time of the divorce proceedings. The Constitution is hugely protective of the institution of marriage and it is likely that if the law was ever to recognise prenups, a Constitutional amendment would be required.
While prenups have no legally binding force in Ireland, there is nothing preventing a Court from examining them. A Judge may take a prenup into consideration if the terms are fair and provide reasonable financial provision to each person upon separation/divorce. A prenup may be a useful document to have in existence and could demonstrate to the Court what was in each person's mind on entering the marriage. In 2007, the Report of the Study Group on Prenuptial Agreements previously proposed four terms that would be “conditions precedent” to any valid execution of a prenup.
- The agreement should be in written form, signed by both parties and witnessed.
- Each party should have received separate independent legal advice.
- Each of the parties should have made full disclosure of all of their financial information.
- The agreement should be executed not less than 28 days before the marriage.
These conditions are merely proposals and are not at all authoritative. It would appear that any weight given to the prenup will depend on whether it provides proper financial provision for each person, whether each person sought independent legal advice before signing the agreement, whether each person fully disclosed their assets before the agreement was signed, whether the agreement was reviewed frequently, particularly after major life events such as the birth of children and the sale/purchase of assets; whether the agreement is in writing and is signed and witnessed and importantly, whether either person was pressured into making the agreement. So, while a prenup is not legally binding, it may provide useful guidance for the Courts upon separation/divorce.
The main difficulty that arises with prenups is that they are made before marriage, but may not be applied until many years later. A couple, in particular a young couple’s circumstances may and likely will have completely changed from when the agreement was created. It would be a fair assumption that a young couple would go on to have children and the prenup cannot possibly determine how the future will pan out in this regard. An agreement that was reasonable first day could now be completely unfair. In addition, there may have been unfair emotional pressure on one party at the time of making the agreement or one party may have been at a disadvantage of some kind while negotiating the agreement.
Some Judges may be guided by prenups where the financial status of the parties has not changed to any great extent. A prenup may therefore be a useful tool for older people (with grown up children) who are entering into a second marriage who are anxious to preserve and protect their assets for children from their previous relationship. A prenup is definitely recommended in such circumstances.
Ahead of Sofia and Joe’s 2015 nuptials, the pair reportedly signed a $100 million prenuptial agreement to protect their individual fortunes and safeguard their individual assets. If this is true, then each will walk away from the marriage with most of the individual assets they each had when they entered the marriage. What might lead to a dispute is the family home, which Sofia initially bought and Joe moved into. The former family home was put up for sale for a staggering $19.6 million in July 2022. It is not clear whether it sold. The pair were in the process of building a bigger home and it is also unclear whether they ever moved into their new second home. In the likely event that the second home is in both of their names and presumably not mentioned in the prenup, then this is where things could get difficult for the pair.
You don’t have to be a mega-rich celebrity to think about putting a prenuptial agreement in place before you get married. There are lots of reasons why more and more Irish people are thinking and talking about them. A prenup should be seriously considered where one partner is the owner of a family farm, if there is a long-established family business or if one or other is just plain wealthy. This, however, may not carry any effect unless the prenup is consistently reviewed with every major lifestyle change and is ultimately fair and reasonable and passes the proper provision test. However, it is critical to note that prenups currently have no legally binding force in Ireland and even if in existence, may never be opened or considered by the Court in a divorce application.
By Aislinn Collins Solicitor
This article is for general information purposes/general overview only and does not constitute legal or other professional advice. We recommend seeking legal advice to interpret and advise on any aspect of the law.
July 2023 Wolfe & Co. LLP Solicitors
Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie
Tel: 028-21177, e-mail: info@wolfe.ie