Pre-nuptuals

The_Minister

I was just told that pre-nups are illegal in Ireland. Is this true?

dermot_sheehan

Firespinner wrote:

I was just told that pre-nups are illegal in Ireland. Is this true?

Not illegal but unenforceable, the constitution requires for a divorce that the court makes proper provision for both spouses and any children,

Victor

Even before the present divorce régime they would have been considered on iffy grounds, simply because they presumed a breakdown.

However, a post-nuptial agreement (to protect / restore a marriage) may be lloked on favourably.

The_Minister

Thats so unfair:( I don't want some woman taking half of what I own

Cantab.

Firespinner wrote:

Thats so unfair:( I don't want some woman taking half of what I own

How anyone could get married under the pretense of a pre-nuptual agreement is beyond me. Last time I checked marriage was a permanent thing - for better for worse until the end of time. If my fiance were to suggest such a thing to me (not that I have one, yet anyway!) I would send her walking instantly. Pre-nuptuals undermine marriage and normalise the kind of adulterous behaviour seen on TV programs such as 'Sex and the City' et. al.

Firespinner may be pleased to learn that the makers of the aforementioned program are to release a pologomy drama in which some middle class chap from the suburbs has about 4 wives who fight over who gets to sleep with the husband on any particular night. Just what is the world coming to...

Pre-nuptual agreements are akin to civil partnerships and whilst they are valid legal entities in themselves, they are hardly worthy of the term 'marriage'.

SteveS

Cantab. wrote:

How anyone could get married under the pretense of a pre-nuptual agreement is beyond me. Last time I checked marriage was a permanent thing - for better for worse until the end of time.

Here is a hypothetical situation. Let's say that you get married and have 3 children. 40 years from now, you die and leave behind your wife and children, now 32, 35, and 38 years old. You and your wife did fairly well over the course of your lives and want your assets to go to your children. After a few years, your widow is lonely and decides to remarry. Her new husband has no children. 5 years later, she dies.

In the US, if you had no will, all of your estate would go to her second husband, not your children. Even if you had a will, her husband could claim a portion of your estate based upon an elective share.

Not all prenup's are rich people trying to make sure their spouse doesn't get half of their assets when they divorce, most are designed to make sure children are taken care of in the case of a second marriage.

Eru

Personally and this is only me, I would have no problem signing one provided there was allowances.

For example, I get nothing even if she runs off with the younger gardiner??? I dont think so but I would sign one that simple allowed for walking with what you brought if it was just not working and there was no 3rd party. Why not? Your not only after the big settlement are you????

Sangre

If you're not going to commit to marriage then don't get married.
Pre-nupitals are unenforceable and rightly so.
People get married for a reason, so that each spouse shares everything and if anything happens the other takes over.
If you're afriad they'll run and then take your money, don't get married.

Eru

Sangre wrote:

If you're not going to commit to marriage then don't get married.
Pre-nupitals are unenforceable and rightly so.
People get married for a reason, so that each spouse shares everything and if anything happens the other takes over.
If you're afriad they'll run and then take your money, don't get married.

Have you never been cheated on or had a realtionship fail despite yuour best efforts? These things can happen no matter what you think or how hard you try.

EducatedGuess

I am actually pleasantly surprised by this discussion, I am presuming that the above posters have studied law at some level and still have such a moral and somewhat 'religious' understanding of the word marriage. I agree with most of what has been said, disagree with pre nups being akin to civil marriages. At the end of the day its a contract, the only part in a marriage ceremony that counts legally is the signing of the registry. Now I know there's alot more to it, religious ritual and love and sharing etc. But people are people and they change sometimes for the better sometimes for the worse. That said i disagree wit pre-nups, they are too clinical and make a presumption that the marriage will be a failure.

Sangre

Of course they happen but if you're not ready to commit to something like marriage then don't.
Marriage has a lot of legal benefits and conversely it has drawbacks!

Thirdfox

Well if we do have pre-nups then it's the lawyers who will benefit in the end, as all parties try to enforce their point of view in court: "She was sleeping with another man" etc. etc.

So the people are the losers once again

But is the current situation such that if my wife were to commit adultery and I seek a divorce (after all other avenues have been pursued) I have to give her half of what I own?

Eru

Thirdfox wrote:

But is the current situation such that if my wife were to commit adultery and I seek a divorce (after all other avenues have been pursued) I have to give her half of what I own?

would leave a bitter taste in your mouth wouldnt it?

dermot_sheehan

Thirdfox wrote:

Well if we do have pre-nups then it's the lawyers who will benefit in the end, as all parties try to enforce their point of view in court: "She was sleeping with another man" etc. etc.

So the people are the losers once again

But is the current situation such that if my wife were to commit adultery and I seek a divorce (after all other avenues have been pursued) I have to give her half of what I own?

Actually allowing pre-nups would actually result in less legal expense in the event of marital breakdown as there would not be drawn out litigation over dividing the assets.

The accusations of adultary would only fly if we had a fault based divorce system or if assets were split on the basis of fault. Our divorce system is not fault based, it's based on 4 out of 5 years separation, no reasonable prospects of reconciliation and proper provision for both spouses (see art. 41.3 of the constitution).

The Supreme Court in T. v. T (http://www.bailii.org/ie/cases/IESC/2002/68.html) has said that fault should not be used as a basis for deciding the split of assets.

The court has to make "proper provision", while this is not always 50:50, its generally taken as a given rule.

EducatedGuess

Family Law in Ireland is not as clear cut as that. The Family Courts and Judges are actually very fair people. Most people think that if you walk up the aisle with 6 houses, you walk back down with 3. Simple I know but gets the point across. Not at all, family case are dealt with on a case by case basis. The circumstances that caused the break up heavily depend upon the judgement. Proof of paying mortgage, bills etc, and children especially. If your both paying equally to the mortgage etc then no real problem. But if you have being paying more then your entitled to a bigger deal. As I said a marriage is a contract in the strictest legal sense. So therefore its kept very legal when deciding who gets what.

dermot_sheehan

EducatedGuess wrote:

Family Law in Ireland is not as clear cut as that. The Family Courts and Judges are actually very fair people. Most people think that if you walk up the aisle with 6 houses, you walk back down with 3. Simple I know but gets the point across. Not at all, family case are dealt with on a case by case basis. The circumstances that caused the break up heavily depend upon the judgement. Proof of paying mortgage, bills etc, and children especially. If your both paying equally to the mortgage etc then no real problem. But if you have being paying more then your entitled to a bigger deal. As I said a marriage is a contract in the strictest legal sense. So therefore its kept very legal when deciding who gets what.

I never said it was strictly 50:50, every case is taken on its merits, however in the few family cases that are reported (all are heard in camera and most in circuit court), it's been said 50:50 is a yardstick when nothing else is available. The idea is that there should be a sharing of misery, the reduction in standard of living when the marriage dissolves.

Thirdfox

Wouldn't standard of living rise for both people as there is no more fighting?

So, on the facts of the matter as it currently stands in Ireland the advice should be: be careful who you marry - golddiggers present!

Karlitosway1978 said:
"would leave a bitter taste in your mouth wouldnt it?"

most certainly... not because of the money but because everything has broken down and she takes half the house - fidelity can't be bought with money!

ambro25

Thirdfox wrote:

But is the current situation such that if my wife were to commit adultery and I seek a divorce (after all other avenues have been pursued) I have to give her half of what I own?

But doesn't half of what you own at any time before the adultery = half of what she owns?

So how and why does adultery (or any other actionable breach of contract) automatically transfer 100% of the conjugal property to one party, i.e. you?

In all of the above posts, people have considered the equity of a breakdown situation (e.g. "he/she cheated on me, so I should be getting everything"), but you're forgetting that in the case of a pre-nup contract, there is no question of equity for a Judge to weigh. Just a contract between (at the time of signing-) consenting parties to enforce.

So, in the case of a pre-nup, there is what you bring to the table at the time of the marriage, what your partner brings to the table at the time of the marriage, but everything acquired after that is still joint, conjugal property to be divided according to prevalent marital law (inasmuch as such exists) and the merits of a case.

padser

gabhain7 wrote:

Actually allowing pre-nups would actually result in less legal expense in the event of marital breakdown as there would not be drawn out litigation over dividing the assets.
.

Its very naive imo to think that a pre nup wouldnt also result in a trip to court. If a pre nup is complex enough to cover most possibly eventualities (eg adulterty, children, grandchildren, money/assets uccumalated while together) then it will not be cut and dry as to who gets what.

For example if a pre nup said each person kept what they had before the marraige it sounds quite straightforward but imagine trying to actually enforce it. A property owned by husband before marraige would go to him, but what if he sold it and bought a different property, or what if his business expanded during the marraige out of all proportion to what it had been etc etc etc.

Whatever system you go with the repudiation or termination of a long term contract such as marraige, coupled with the fact it is the only contract most people enter in their lifetime dealing with money/assets in excess of €500,000 or €1M, will always be prone to extensive litagation

Just my 2c

Our man in Havana

What would happen if both parties said to a divorce judge, "Can we have whats in the agreement we signed 10 years ago, we are both happy with its provisions. we both waive everything else." No kids involved

dermot_sheehan

Bond-007 wrote:

What would happen if both parties said to a divorce judge, "Can we have whats in the agreement we signed 10 years ago, we are both happy with its provisions. we both waive everything else." No kids involved

Both parties can enter a separation agreement at the time of legal separation. That agreement is revisited at the time of divorce (4 years later), and can be revisited at any time in the future on the application of either of the parties. There is no "clean break" divorce in Ireland.

Maximilian

Bond-007 wrote:

What would happen if both parties said to a divorce judge, "Can we have whats in the agreement we signed 10 years ago, we are both happy with its provisions. we both waive everything else." No kids involved

In such an event the pre-nup is irrelevant. Both sides have simply agreed to a settlement that happens to be the same as the pre-nup.

There is some (scant) authority, as far as I now, that a court may (at its discretion) take note of the contents of a pre-nup but the bottom line is pre-nups have no legal standing in this country. As the above poster mentioned, if a seperation agreement can be re-visited by a court, what chance would a pre-nup have?

Personally, speaking I would be in favour of the recognition of pre-nups, especially in the case of second marriages. Without going into it, it is possible for situations to arise whereby children can be effectively disinherited.

Anyway, marriage is crazy if you're a guy - men get shafted in marriage break-ups. I've seen some very sad cases indeed.