The Legal Position of Marriage in Ireland [Get yer latest thread titles here]

CDfm · 28-09-2009 12:48pm #1

I came across this article. UK case law is persuasive precedent in Ireland which means that would give prenups some force even though they are not legislated for.

http://www.timesonline.co.uk/tol/comment/columnists/libby_purves/article6851548.ece

lazygal · 28-09-2009 4:27pm

Uk law may be persuasive, but in terms of marriage contract we are powerfully bound by the Consitution. Anything considered to "undermine the primary social unit of the State", which prenups are considered to do is unconstitutional, hence the difficulty in introducing same sex marriage and the need to have civil partnership instead.
A case from the 30s in the UK also still prevails here, in which it was held that a prenup is effectively planning the end of a marriage, which was held by the House of Lords as illegal as it undermined the marriage contract in the greater sense.
It would, IMO, require a Consitutional change, via referendum, to enshrine any prenuptual agreements in law in Ireland, due to the primacy of marriage in the Consitution-don't forget UK law has no written Constitution to refer to.

CDfm · 28-09-2009 5:47pm

lazygal wrote: »

A case from the 30s in the UK also still prevails here, in which it was held that a prenup is effectively planning the end of a marriage, which was held by the House of Lords as illegal as it undermined the marriage contract in the greater sense.

But we have divorce so it wouldn't undermine anything?

If anything it could strenghten it.

lazygal · 28-09-2009 6:47pm

Divorce was introduced after a constitutional referendum, thus changing the Constitution to allow it. It was reasoned that as it takes place after the marriage contract is effected (as per the Statute of Frauds 1695, which governs the marriage contract) and does not undermine marriage per se, unlike a prenup which is, in effect, planning the dissolution of a contract before it has been effected, a legal impossibility.
As I stated, a referendum would be required due to existing law governeing the marriage contract and the primary afforded to marriage in our Consitution. Irish law does not always follow UK precendence, as seen in our abortion and, until recently, contraception laws, and our constitutional provisions regarding marriage are slow to change.
It must also be remembered that the House of Lords decision from the 1930s remains the de facto position in the UK, any clarifications of the law are not new law but would require the Commons to introduce a new law, which, in my view, is some time away as Britain is also govereed by the Statute of Frauds.
Also, other poster, EU law is already superior to the Irish Constitution and has been since the Maastricht Treaty. We retain rights over moral and social policy as per Nice etc, but 90% of our laws now come in the form of EU directives and not from the domestic legislature.

CDfm · 29-09-2009 11:22am

This isn't about Lisbon though. Marriage and relationships have changed and we are following rules that were set in the 1930s or 17th century.

Whats wrong with a couple setting their own rules for what happens if things go wrong rather than disolving the marriage thru the adversorial court system. It seems so much more civilised.

I have a friend who has organised most of her seperation via agreement and what she thinks is fair. She says her solicitor thinks she is nuts and cant see why she would do stuff she thinks is ethically right when she could get more with pistols at dawn.

r3nu4l · 29-09-2009 11:24am

Okay, I've deleted posts referencing the Lisbon treaty. There are plenty of other forums to debate Lisbon so please do so there. Thanks everyone:)

lazygal · 29-09-2009 12:18pm

CDfm, what is wrong is that a prenuptual agreement does not come within legal convention and a couple who does produce one could never enforce it in an Irish court-it would be a waste of time and money to draw one up. Now, I'm not saying the law is correct, but we enter marriage contracts of our own free will, as per our Constitutional law, the Statute of Frauds and UK law we adopted at the time of independence. It's not romantic but marriage is a contract, subject to law the same as any other contract.
You could lobby for a change in law, but given the primacy of marriage over centuaries of common law and its fundmental place in our Constitution, change will be slow and would require a referendum.
IMO, pure laziness on our part at the dawn of the foundation of the State led the leaders of the time to adopt UK law and the precendence it creates, in your example, regarding the marriage contract is responsible for the tangles system we currently have. Get onto your TD and lobby him or her, but change in this area will be a long time coming and would require a referendum, which is not a popular option given the current wranglings over civil partnerships and their constitutional position.

CDfm · 29-09-2009 2:27pm

I suppose you have a point lazygal.

Would you get married, and what are the advantages to a guy getting married say over cohabiting? Are there different advantages/disadvantages depending for a woman?

Just continuing here from lazygals point rather than any gender based arguments but as a point to ponder.

29-09-2009 3:37pm

Sorry Lazygirl....Prenups aren't even on the cards somewhere?

If someone gets married in a different jurisdiction, where they are legal.
Can they come into play then?

lazygal · 29-09-2009 5:03pm

Hi again CDfm
I presume you're referring to the legal rather than personal advantages of marriage?
Well, marriage solidifies the legal connection between two parties and, IMO, makes it easier to dissolve assets should the union dissolve. Many people assume a "common law partner" has the same status as a marriage, a major misconception. Common law partner means no rights other than that of any partnership (ie two friends buying a house) whereas a marriage contract or divorce of same lends itself to a much clearer legal position. Property is, after all, the basis of the original marriage contract and we don't seem to have found a better way of legally recognising unions, apart from the idea of "civil partnership" for same sex couples.
I would get married (not sure how far away that is) as I feel it really does confer more legal rights and benefits on both parties than merely co-habiting, but I'm also a little romantic-I do want to walk up the ailse some day!!
Moonbaby,
It does not matter if one has a prenup signed and agreed to in another jurisdiction, it would not be enforceable here as we do not recognise them. The Zappone judgment (in respect of two women validly married in Canada but whose marriage was not recognised legally here) makes it clear that even if one made a legal contract (ie a prenup) in another legal jurisdiction, if it does not comply with Irish law it cannot be enforceable here. Sorry if thats not the news you wanted, but is my legal (job in another life!) opinion.
This is one complex area though, and I'm not surprised many people are confused, but remember the law regarding marriage is the law here and not American or UK law, which, while interesting, is not enforeceable or, in some cases, even arguable here.
Hope this helps!
PS. I presume that was not a proposal, CDfm?!

CDfm · 29-09-2009 5:38pm

lazygal wrote: »

Property is, after all, the basis of the original marriage contract and we don't seem to have found a better way of legally recognising unions

Wow _ I didnt know that

People dont look at it as a contract but it is a bit where lots of stuff is set by law. We look at the romantic and religious bits but not the rights and responsibilities. Im divorced and still know very little.

PS. I presume that was not a proposal, CDfm?!

LOL

lazygal · 29-09-2009 8:12pm

Yes indeed, property transfers necessitated the marriage contract, as the wife's assets became her husbands (she was a chattel ie a piece of his property like cows or furniture until various Married Women's Property Acts were introduced) and a contract was needed to solidify these transfers in law-goes all the way back to Magna Carta etc and "marriage" contracts of various forms is a universal concept in almost all societies.
And, I have (over) stated, marriage is nowt but another form of contract like buying a house or tendering for a service and, as such, has its own legal principles-when you sign the register thats the contract in all its glory, and I don't think anyone realises that what they are signing is comparable to a bog standard contract to purchase property.
Not very romantic, but I've had to explain this concept to more than one friend over the years. IMO if more of us spent more time reading the small print of this contract and less time worrying that the colour of the menus match the bridesmaids' dresses, there would probably be fewer cases ending up in the family law courts behind closed doors as people would be aware of what they are signing up for!!!
I am glad we are clear we will not be entering such a contract.

CDfm · 29-09-2009 10:46pm

lazygal wrote: »

Yes indeed, property transfers necessitated the marriage contract, as the wife's assets became her husbands (she was a chattel ie a piece of his property like cows

Surely historically that was for nobility and property owners.

And, I have (over) stated, marriage is nowt but another form of contract like buying a house or tendering for a service and, as such, has its own legal principles-when you sign the register thats the contract in all its glory, and I don't think anyone realises that what they are signing is comparable to a bog standard contract to purchase property.

So whats in the contract - Im all ears.

I am glad we are clear we will not be entering such a contract.

I never accept proposals before the first date:D:

Amazotheamazing · 30-09-2009 3:37am

lazygal wrote: »

Divorce was introduced after a constitutional referendum, thus changing the Constitution to allow it. It was reasoned that as it takes place after the marriage contract is effected (as per the Statute of Frauds 1695, which governs the marriage contract) and does not undermine marriage per se, unlike a prenup which is, in effect, planning the dissolution of a contract before it has been effected, a legal impossibility.

That's one way of looking it at it, but most other forms of contracts allow for conditions when they can be terminated. I'm surprised no one has argued that a prenup isn't actually planning the dissolution of a marriage, but rather, what should happen if a dissolution should occur.

Anyhow, Irish Courts will take prenups into account when reaching a decision, but they aren't actually binding here, which is pretty much an Irish solution to an Irish problem. Haven't the LRC suggested that their position be regularised?

lazygal · 30-09-2009 9:20am

Irish Courts don't take them into account, as I stated a case from the 1930s illustrates the point that to plan the dissolution of a marriage contract before the contract is effected is not legally possible. A couple may produce one in court but as it is as much legally binding as a rota about who should do the housework it forms no part of a divorce settlement. It is like saying "I'm buying your house, we'll sign a contract but I've got a piece of paper saying if I change my mind after the contract, this is what we'll say it will be worth": you cannot plan to dissovle a contract while still negotiating a contract, the legal position is that a contract must be legally valid and planning the dissolution of it (in any form) would mean the contract is unenforceable.
I'm not saying they shouldn't be take into account, I'm just stating that prenups are not legally valid in Ireland-we can argue till the cows come home about changes that should be made or that the current situation is not modern enough and doesn't take account of contemporary situations, but the law is the law, and whether we like it, it is the current situation for those entering into a contract for marriage.

As for the foundation of it in property, the smallest tenant farmer had property rights (ie the right to farm a particular patch) so every single marriage, be it the nobility or a peasant, involves the transfer of property-as I stated the wife was considered her husband's property after marriage and thus a contract was required to complete this transfer of property as the woman passed from being thte property of her father to that of her husband.

CDfm · 30-09-2009 11:27am

lazygal wrote: »

we can argue till the cows come home

You do love your cows:D

As for the foundation of it in property, the smallest tenant farmer had property rights (ie the right to farm a particular patch) so every single marriage, be it the nobility or a peasant, involves the transfer of property-as I stated the wife was considered her husband's property after marriage and thus a contract was required to complete this transfer of property as the woman passed from being thte property of her father to that of her husband.

Thats the origan and I remember reading that husband murder was petty treason and warranted burning at the stake and wife murdering got mere hanging so I get that. I suppose the treason was that the male peasant was the kings property.

So you had a transfer of "Ownership" on marriage. Thats the historical but whats the actual contract now- what are the actual terms.

I can see your point as its not possible to contract out of maintenance rights/obligations.

Great posts BTW lazygal.:)

lazygal · 30-09-2009 11:59am

Yes I'm really fantastically clever, even though a bit rusty on contract law:D
In Ireland, a contract for marriage follows the Statute of Frauds (1695), where a contract for the purpose of marriage must be evidenced in writing (ie signing the register of marriage) and thus binds the parties to the law of contract concerning property rights, the transfer of chattels and various sundry marriage rights.
In Ireland (unlike the UK) a marriage is also subject to Constitutional provisions. Very unusually, we have accored marriage a primary place in our written Constitution and it is considered the primary social unit of the State, and, as such, is considered to be almost un-interfereable with (not a word, but you get the picture). Various Supreme Court judgments over the years have reinforced the primacy of the marriage contract, such as the fact it legitimises children (on a side note illegtimate children, until the 1980s, were considered to have a lesser social function, a terrible ruling but shows how vital marriage is, than those born of married parents-there are myriad such cases, including the fact that contraception was only availabe to married people until relatively recently and the fact a married coupled cannot put their child up for adoption) and affords a married couple tax benefits that cannot be claimed by a couple who are merely co-habiting.
In short, marriage is a contract (which has developed under common and constitutional law) for the purpose of solidifying the social function of the State, and as a couple are free and willing to enter into such a contract, the State will afford the couple certain benefits and legal rights that cannot be claimed by siblings living together, co-habiting couples or single people.
Yes I love cows, but in a purely platonic way, and anyway our Ye Olde English laws and Constitution mean I can't marry them.

Pherekydes · 30-09-2009 12:35pm

CDfm wrote: »

Great posts BTW lazygal.:)

+1.

I think we should have to start paying fees.

CDfm · 30-09-2009 1:09pm

So you have the legal contract and the social thingy.

What rights/obligations do they bestow?

lazygal · 30-09-2009 1:32pm

The rights mainly involve the protection of assets (once again, the reason for the contract in the first place). Such rights include the right of the woman (yes, mainly women) to remain in the marital home until the children are of age, the right to the superior tax arrangments (ie it is unconstitutional to make a married couple worse of in terms of tax credits than a single person/unmarried couple, Murphy v Attorney General is the case, from a rusty memory) and the right to have the main asset protected, which is why it is INCREDIBLY difficult to reposses a family home of a married couple.
Another right is that of possession of a child. If a couple has seperated (not divorced) or is in a normal married relationship, the child of such a union cannot be offered for adoption, whereas one born of single parents or unmarried couples can indeed be given up for adoption. This can lead to very unfortunate situations, where the child of a married couple is left in a situation much less desireable than that of a child born to a single parent because the State is so reluctant to interfere in the arrangments of married couples (see the Roscommon incest case for a terrible result of this apathy).
As far as obligations go, they mainly take the form of obligations the State has to married couples rather that obligations the couple have to eachother. Thus, the State has an obligation to protect the primary social unit of the State by all means-some financial (tax code), some social (not taking children away) and some moral (the general legal code that applies to married couples but will not apply to those who will avail of civil unions when they come in).
In short, it is not black and white, a result of a system that lobbed ancient law (Britain), Consitutional law (Ireland) and precendence in some contract law (we're both to blame for this) together.
Phew "takes aspirin and plans fee structure and high-priced family law classes".
I think we've bonded over this CDfm, this could be the start of something special. Who said law was unromantic?:D

CDfm · 30-09-2009 1:58pm

lazygal wrote: »

The rights mainly involve the protection of assets (once again, the reason for the contract in the first place). Such rights include the right of the woman (yes, mainly women) to remain in the marital home until the children are of age,

The biggie.Can you explain?

I think we've bonded over this CDfm, this could be the start of something special. Who said law was unromantic?:D

You explain it well and so nicely too.

I still don't know where the cows fit in.

Now I have a friend in Limerick who brought some sheep home and put them in the back garden. Well the story is that they got loose and were last seen wandering towards the University Campus. My feeling is his wife left them out on purpose. He was most upset and indignant. Thats a true story. :eek:

Amazotheamazing · 30-09-2009 3:34pm

lazygal wrote: »

Irish Courts don't take them into account...

No, Irish Courts don't have to take them into account but the can be used as guides should a couple split up.

Iirc, Geoffrey Shannon advises his clients to make one anyway, not because they have any legal weight but because they'll show a judge the state of both parties before entering into marriage. If you have a prenup, the Judge can choose to consider it along with a host of other factors that the Judge can choose to consider when making a determination.

CDfm · 30-09-2009 3:51pm

Amazotheamazing wrote: »

No, Irish Courts don't have to take them into account but the can be used as guides should a couple split up.

Iirc, Geoffrey Shannon advises his clients to make one anyway, not because they have any legal weight but because they'll show a judge the state of both parties before entering into marriage. If you have a prenup, the Judge can choose to consider it along with a host of other factors that the Judge can choose to consider when making a determination

So they are not binding so what content should they have?

Amazotheamazing · 30-09-2009 4:09pm

CDfm wrote: »

So they are not binding so what content should they have?

Never had to draft one in my time in the office I'm afraid but I imagine you'd start with statements of what assets either party had going into the marriage, their monetary value etc and how you like to deal with any assets accrued during the marriage etc. Not sure how you'd attempt to deal with any maintenance provisions. Like I said, it would just be a guideline moreso than anything else.

I remember my training solicitor said that the important thing to do in writing any of such Statements is that they can be understood by a three year old child, which is the maturity of most barristers, and then explained by a three year old child to another three year old child, which is what happens in Court.... There's a reason roughly 70% of family law cases settle outside Court.

CDfm · 30-09-2009 4:24pm

Taken what lazygal said above about the marital home then surely it is nonsensical for any guy to buy an expensive house but he should go for the cheapest possible.Whereas for a woman whether, the main earner or not,she should be looking for the most expensive.

I have heard of men claiming maintenence too these days.

So if a pre-nup is not binding then presumably there are certain rules of thumb that should be applied or are there?

I don't mean this to become a battle of the sexes thread but what types of stuff being prudent should be done.

I read a post on PI of a guy with 20K saved aside for a house which his OH has earmarked for the wedding.

Amazotheamazing · 30-09-2009 4:40pm

CDfm wrote: »

Taken what lazygal said above about the marital home then surely it is nonsensical for any guy to buy an expensive house but he should go for the cheapest possible.Whereas for a woman whether, the main earner or not,she should be looking for the most expensive.

I have heard of men claiming maintenence too these days.

So if a pre-nup is not binding then presumably there are certain rules of thumb that should be applied or are there?

I don't mean this to become a battle of the sexes thread but what types of stuff being prudent should be done.

I read a post on PI of a guy with 20K saved aside for a house which his OH has earmarked for the wedding.

I think Lazygal has misstated things slightly, it's not a woman's right to stay in the family home until the children are raised, it's the primary carers right to do so. Perhaps the language of the marriage contract states it as a woman's right but modern Courts interpret it as meaning whichever spouse is the primary carer.

The guy on PI is an idiot if he thinks that's a good start to a marriage. Imo, the key to a successful marriage is if both parties want the same (ish) things from life and can communicate clearly with each other. Already that couple are falling down at both hurdles.

The rise of negative equity has caused quite a lot of problems in family law, very often the family home is the only significant asset the parties have, and now it's unsellable so what do both parties do?

CDfm · 30-09-2009 4:44pm

Is there such a thing as family income , say, a person earns a salary is that in the pot so to speak?

Or, say if someone gives up work or acts in a way that is detrimental to the family finances.

Amazotheamazing · 30-09-2009 5:06pm

CDfm wrote: »

Is there such a thing as family income , say, a person earns a salary is that in the pot so to speak?

Or, say if someone gives up work or acts in a way that is detrimental to the family finances.

We're way off prenups here. In relation to the first point, all salary will be considered as an asset of the family. In relation to the second point, depends on the Judge, some horror stories out there (for example, when I was finishing up, we had a client who's wife's intransigence probably cost the family upwards of 8 million euro due to dragging her feet on a business deal, economy collapsed (which we saw coming) and the deal fell through (bank shut off the money). Judge didn't want to know about it. The ex in that case was a genuine nutter but usually in my experience it's the men who are more likely to do such things.

CDfm · 30-09-2009 5:12pm

So once a person marries they no longer own their own salary.Its no longer theirs to do with as they please?:eek:

Amazotheamazing · 30-09-2009 5:22pm

CDfm wrote: »

So once a person marries they no longer own their own salary.Its no longer theirs to do with as they please?:eek:

No, it's when they divorce they lose that right, up til then you can fight it out with your spouse as to what way the salary can be used. (Slightly tongue in cheek).

lazygal · 30-09-2009 9:31pm

I did qualify my statement by saying it is mainly women who retain the right to stay in the marital home, so I don't think I misstated the point, obviously men sometimes get the right but it is mainly women.
Back on prenups, amanzo (is that right?!), do you not think it's a waste of time and money getting one drawn up and notorised when they are not legally binding? From the few cases I did such "contracts" were all but tossed aside by most judges who considered them totally irrelevent and one in case, a nuisance, as solicitors should know prenups can't be enforced here? Wasting the judge's time is never a good idea, and as prenups, as we know, are not enforceable so why bother? Seems like a scam for anyone to advise getting one and I would have advised (I'm not in the business now) that they are not enforceable.
Not saying they would never be taken as evidence, as , from my experience, pretty much everything can be tossed into the pot for a family law case, but why get a solicitor to draw one up for you? One you did yourself, I would contend, would carry the same legal weight as a notorised one a solicitor would charge money for, ie none.

The Legal Position of Marriage in Ireland [Get yer latest thread titles here]

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