Holly Heeney, Dublin City University, BCL Clinical (4th Year)
Holly is a final-year BCL student at Dublin City University, graduating in 2025, with aspirations to become both a Solicitor and a Lawyer-Linguist. During her term as Secretary General of the European Law Students’ Association of Ireland, she developed a profound passion for transnational and European legal affairs, sparking her interest in the comparative study of legal systems.
As a French speaker with a deep appreciation for French language and culture, Holly is particularly intrigued by how France’s legal system approaches prenuptial agreements, offering valuable insights for potential reform in Ireland. She further cultivated her passion for European law as a competitor in the ECrtHR-style Helga Pedersen Moot in Switzerland.
I. INTRODUCTION
A prenuptial agreement, also known as a premarital agreement or colloquially as a ‘prenup’, is a legal contract entered into prior to marriage.[1] The agreement sets out divisions of assets and may contain provisions for spousal and child support should a marriage extend to separations.[2] While civil law jurisdictions such as France enjoy an enforceable prenuptial legal framework, in Ireland, the status of prenuptial agreements remains uncertain as they are not binding, providing persuasive guidelines only.[3] It appears that Ireland continues to abide by the rejection of such agreements as they are viewed to be contrary to public policy.[4] There are numerous issues and arguments for whether or not prenuptial agreements should be enforceable in Irish law. One of the key issues for the Irish courts is how to achieve the perfect balance in ensuring ‘Proper Provision’,[5] without overriding the statutory duty of the Irish state in safeguarding this. While this has proven to be difficult in Ireland,[6] the French system appears to have mastered the effectiveness of implementing such a system with the certainty of The Regimes Matrimoniaux to assist spouses in the division of their assets, taking into account all interests of the separating couple.[7] This paper aims to critically analyse the current place that prenuptial agreements have in Irish law, in contrast with the French Civil Code. With prenuptial agreements having no binding effect in Ireland, this paper will also examine the impact this has on Irish society by taking a feminist perspective. The final part of this analysis will conclude with an assessment of the need for extensive reform in this area of Irish Family Law.
II. CRITICAL ANALYSIS
Traditionally in Ireland, ‘public policy’ concerns were attached to the concept of a prenuptial agreement.6 Prenuptial agreements were associated with motivating and supporting ‘a breakdown of marital relations’ as per Brodie v Brodie.[8] Thus, such agreements were viewed as threatening the custom of marriage, protected under Article 41.3.1° of the Constitution of Ireland.
This argument dates back as far as the nineteenth century when the courts established in Marquis of Westmeath v Marquess of Salisbury[9] that a prenuptial agreement would undermine “the sanctity of marriage”[10]. However, these views do not accurately depict the current status of prenuptial agreements in Ireland regarding public policy. Since the passing of the Family Law (Divorce) Act 1996, a monumental development in Irish Family Law, the argument of a prenuptial agreement supporting a breakdown of marriage has drastically lost its force.[11] The attitude towards prenuptial agreements is certainly a more open-minded one as Irish society has adapted to many socio-economic changes over time. With increased incomes of couples intending to marry, a heightened average age of marriage, developments in divorce law and an increase in re-marriages, the public policy argument has declined substantially.[12] Buckley poses a vital question; if divorce is no longer considered to be contrary to public policy, then why should spouses not cater for it ahead of time?[13] On this note, it can be argued that a premarital agreement can actually bring about marital security and at the same time, predict contention, resulting in a more time and cost-effective resolution for spouses.[14] Academics would agree that this is an incredibly progressive approach for this area of Irish Family Law as this viewpoint highlights how Ireland has adapted to socio-economic changes, such as recognising the increased economic independence of women, often balancing family life with a career and a greater wealth accumulation before marriage due to the increased average age of marriage in general.[15] ln addition, this outlook can strengthen a premarital contract’s journey to enforceability in support of the movement tending towards it.
The institution of marriage is protected from “attack” under Article 41.3.1° of the Constitution. Are prenuptial agreements really considered to be an “attack” on Irish marriage? Wade displays a reasonable approach by mentioning ‘ownership’ here.[16] A prenuptial agreement, instead of attacking the interests of the State, actually allows the married couple to set their own firm boundaries and instill core values into their marriage, rather than rigid legislative ones.[17] In addition, contractual variability[18] in prenuptial agreements is a key point for Irish law to consider from a dispute resolution perspective. A prenuptial agreement does not seek to undermine the institution of marriage. Instead, if prenuptial agreements were to be legally binding in Ireland, spouses would enjoy the freedom and flexibility to satisfy their individual interests that align with their own personalities, in which Shultz believes could actually lead to a harmonious divorce.[19]
The current debate regarding prenuptial agreements revolves around the issue of ensuring ‘proper provision’ if prenuptial agreements were to be enforceable. Proper provision is safeguarded in the framework of the Irish Constitution.[20] The Irish courts have a strenuous task in ensuring proper provision is made for spouses and dependent children. This ‘provision’ must be consistent with the interests of justice as explored in YG v NG.[21] On one hand, this strict criterion, once fulfilled could possibly allow for prenuptial agreements to be given weight where there are “ample resources”[22] available to the court in separation proceedings.[23] On the other hand, if the prenuptial agreement appears to undermine the court’s duty to provide ‘proper provision’ for parties, such potential weight is discarded, as established in DE v FG.[24] From a modern perspective, the creation of such an agreement, with the spouses clearly setting out the division of assets and maintenance payments for children reflects an enormous effort in ensuring that the interests of the family and the ‘proper provision’ interests are satisfied equally, following a dissolution of marriage.[25] In addition, Crowley observes that a prenuptial agreement made by spouses highlights an attempt to maintain predictability and even certainty should their marriage fail.[26] The following question comes into play: is the task for Irish courts in balancing their duty while still giving weight to a premarital contract unachievable? With prenuptial agreements being not legally binding in Ireland, the goal for obtaining ‘proper provision’ seems distant at present.
III. COMPARATIVE – THE FRENCH CIVIL CODE
In comparison to the French jurisdiction, here a more efficient method is implemented as premarital contracts are provided for and follow a straightforward process for couples to adhere to. The Regimes Matrimoniaux[27] determine the division of property under the French Civil Code should a marriage fail.[28] This system is an incredibly effective one as the interests of the separating spouses and the State are accounted for and satisfied, simultaneously. Whereas in Ireland, this balance appears to be quite a challenging goal to achieve. So why is it that the French Civil Code appears to have mastered such an efficient process in the area of marital separation? Well, that would be with the assistance of the ‘Notaire’.[29] By decreasing the risk of further dispute in separation cases, the notaire essentially acts as the “middle man”, protecting the interests of the state and both spouses equally.[30] Recently, in R(YN) v N(M)[31] The Irish High Court recently expressed their desire for such a system to be adopted in Ireland.
The French system is impressively advantageous as key concerns such as an undermining of public policy, a lack of proper provision and gender inequality in prenuptial agreements are either dealt with or completely avoided.[32] These issues collectively continue to be hard to tackle for Irish law. In contrast to the Irish system, this categorical system in France provides for a certain and predictable outcome, thus, reducing court time (and cost) for spouses, diminishing any further dispute. Ultimately, the process in France is far less contentious than the Irish “judicial lottery”.[33]
III. IMPACT ON SOCIETY
The ambiguous status of prenuptial agreements in Ireland has a lasting impact on Irish society with effects being both positive and negative. One negative effect relates to the concern of an unequal bargaining position of women due to this lack of protective legislation.[34] Academics like Buckley suggest that women tend to cater for “interpersonal accommodation” due to their “ethic of care” whereas for men, it is not the goal for them to maximise any interest other than their own; and this places women at an “extreme disadvantage”[35]. In a traditional marriage, women are conceived to be ingrained within their roles.[36] Although female presence in the workforce has increased substantially over the years, the strong “caring role” of women in the traditional Irish home places women in such agreements in a position of economic vulnerability.[37] The uncertainty of prenuptial agreements only paves the way for women to accommodate others due to the nature of their role in the home and as Bix puts it, by “maximising the interests of others”.[38] On the other hand, Lauerman explains that assumptions relating to women’s weakened bargaining powers should not support the invalidity of prenuptial agreements.[39] Alternatively, the recognition of this issue in itself has actually asserted the need for judicial reform on their enforceability.
In more modern times, a positive change has been developed through the case of Radmacher v Granatino.[40] For the first time, the case recognises the influence and impact of prenuptial agreements, where the agreement is freely entered into by both parties.[41] Although heard in the English courts, this case sets a persuasive precedent for Irish courts to follow in future divorce proceedings. This case was justified by the need to respect autonomy in decision-making in prenuptial agreements and avoid outdated paternalistic ways.[42] While some academics take the view that “prenuptial agreements […] are […] contracts that violate societal norms against gender discrimination[43] This outlook is diminished by Radmacher v Granatino.[44] The assumption established of both parties acting in their best interests serves as a complete game-changer when considering the status of a prenuptial agreement in Irish law going forward as the court’s “unfettered discretion”[45] in determining the weight of such agreements is narrowed. The separating spouses may now be placed at the forefront of their own interests.
IV. NEED FOR REFORM
Whilst there have been some small developments through case law in this area of Irish Family Law, we still lack clarity as to whether or not prenuptial agreements are going to be legally binding in Ireland. A legislative framework has been recommended and published in a reform paper submitted by the Family Lawyers’ Association Law Reform Committee in 2007.[46] Despite legislative protections being proposed, the reform paper could not attempt to hide its hesitancy to enact sufficient legislation enforcing prenuptial agreements in Ireland. Instead, the main focus centres on drafting a prenuptial agreement under a new regulated process[47]. At present, couples are still faced with the problem of uncertainty and the unpredictability that lies ahead in this area.[48] Although these proposals may be a step in the right direction, there is still no clear guarantee that this written agreement will be given weight in court. The question that must be addressed is as follows: Have there been any concrete developments that strive to change the status of prenuptial agreements to legally binding in Irish law? I would argue that the presence of any improvements are not sufficient. It is clear that a strict regulatory and legislative framework needs to be enacted, one similar to the effective system in France. Academics including Barry assert the need for a ‘Prenuptial Agreement Approval Board’ to be established with qualified practitioners in the area of marital separation.[49] This would take inspiration from the notaire system in France.[50] A breakdown of marital relations is already a period of extreme uncertainty and distress for families emotionally outside the courtroom, so why should the Irish law on prenuptial agreements (or the lack thereof) greatly contribute to this tension? The simple answer is that it should not. It should serve to protect and provide for families in this area. Therefore, a reform in this style would promote a more effective system and enforce stability for families.
V. CONCLUSION
While the debate on whether or not prenuptial agreements should be enforceable in Irish law still remains, it is clear that there are a number of factors to take into account when considering their validity. Many critics are quick to dismiss the possibility of a prenuptial agreement having a legally binding status within Irish law. Despite this, there appears to be an overwhelming amount of academic commentary in favour of such agreements. According to a report on prenuptial agreements published by the Department of Justice, Equality and Law Reform, an appropriate and proactive next step forward would be to encourage parties to “personalise their marital contracts”[51] by giving weight to prenuptial agreements in Ireland.
Under the current framework of Irish law, the enforceability of premarital contracts remains an uncertain and unresolved issue. At present, we are confronted with the same lack of clarity that plagues separating spouses as they enter the courtroom, anxiously seeking resolution and closure in their divorce proceedings. In this area of family law, the trajectory towards legal certainty is far from defined, leaving both legal practitioners and parties involved navigating a complex and unpredictable landscape.
[1] Louise Crowley, Family Law, (1st edn, Roundhall 2013) Ch l0.
[2] Brian Barry, ‘Modernising the Law on Prenuptial Agreements in Ireland’ (2009) 12(1)Trinity College Law Review 80.
[3] Louise Crowley, ‘Prenuptial Agreements – Have They Any Place in Irish Family Law?’ (2002) 5(1) Irish Journal of Family Law 3.
[4] Lucy-Ann Buckley, ‘Autonomy and prenuptial agreements in Ireland: a relational analysis.’ (2018) 38(1) Legal Studies, 164.
[5] The Constitution of Ireland, Article 41.3.2°.
[6] Louise Crowley, ‘Prenuptial Agreements – Have They Any Place in Irish Family Law?’ (2002) 5(1) Irish Journal of Family Law 3.
[7] J. Carbonnier Un Essai de Statistique de la Répartition des Régimes Matrimoniaux Conventionnels a la Veille de la Reforme de 1965’,(1964) 15(3) L’année Sociologique 443.
[8] Brodie v Brodie [1917] 33 TLR 525.
[9] Marquis of Westmeath v Marchioness of Westmeath & Ors [1830] 6 ER 619.
[10] ibid.
[11] Lucy-Ann Buckley, ‘Ante-nuptial Agreements and “Proper Provision”: an Irish Response to Radmacher v. Granatino’ (2011) 14(1) Irish Journal of Family Law 3.
[12] Brian Barry, ‘Modernising the Law on Prenuptial Agreements in Ireland’ (2009) 12(1)Trinity College Law Review 80.
[13] Lucy-Ann Buckley, ‘Ante-nuptial Agreements and “Proper Provision”: an Irish Response to Radmacher v. Granatino’ (2011) 14(1) Irish Journal of Family Law 3.
[14] Sharon Thompson, ‘Feminist relational contract theory: a new model for family property agreements’ (2018) 45(4) Journal of Law and Society 617.
[15] Louise Crowley, ‘Equal versus Equitable Division of Marital Assets—What Can Be Learned from the Experiences of Other Jurisdictions? Part I’ (2007) 1 IJFL 19, 22.
[16] J Wade, ‘Negotiating Family Settlements: Benefits and Barriers’ (1983–1985) 4 Can J Fam L 49, 50.
[17] ibid.
[18] M Shultz, ‘Contractual Ordering of Marriage: A New Model for State Policy’ (1982) 70 Cal L Rev 204.
[19] ibid.
[20] Article 41.3.2°.
[21] YG v NG [2011] IESC 40.
[22] DE v FG [2019] IEHC 83, (Binchy J).
[23] Laura Michelle Croke, ‘Irish Divorce Law: Where Art Thou Certainty’ (2015) 5 King’s Inns Law Rev 33.
[24] DE v FG [2019) IEHC 83, (Binchy J).
[25] Lucy-Ann Buckley, ‘Ante-nuptial Agreements and “Proper Provision”: An Irish Response to Radmacher v Granatino’ (2011) 14(1) Irish Journal of Family Law 3.
[26] Louise Crowley, “Prenuptial Agreements – Have They Any Place in Irish Family Law?” (2002) 5(1) Irish Journal of Family Law 3.
[27] J. Carbonnier ‘Un Essai de Statistique de la Répartition des Régimes Matrimoniaux Conventionnels a la Veille de la Reforme de 1965’, (1964) 15(3) L’année Sociologique, 443-449.
[28]Nicolas Frémeaux, Marion Leturcq, ‘Wealth, marriage and prenuptial agreements in France (1855 – 2010)’ (2016) Documents de Travail, Institut National D’etudes Démographiques (date accessed 28 February 2023).
[29]French Civil Code, Article 1394.
[30] Brian Barry, ‘Modernising the Law on Prenuptial Agreements in Ireland’ (2009) 12(1)Trinity College Law Review 80.
[31] R(YN) v N(M) [2005] IEHC 335, [2005] 4 IR 5.
[32] Nicolas Frémeaux, Marion Leturcq, ‘Wealth, marriage and prenuptial agreements in France (1855 – 2010)’ (2016) Documents de Travail, Institut National D’etudes Démographiques (date accessed 28 February 2023)
[33]Jeremy Morley, ‘Enforceable Prenuptial Agreements: Their Time Has Come’ (2006) (4) Journal of International Family Law.
[34] Erika Coughlan, ‘The Future of Pre-nuptial Agreements in Irish Law in Light of Recent Developments in the United Kingdom’ (2014) 17(4) Irish Journal of Family Law 98.
[35] Lucy-Ann Buckley, “Autonomy and prenuptial agreements in Ireland: a relational analysis’ (2018) Legal Studies, 38(1), 164-186.
[36] ibid.
[37] Louise Crowley, ‘Equal versus Equitable Division of Marital Assets—What Can Be Learned from the Experiences of Other Jurisdictions? Part I’ (2007) 1 IJFL 19, 22.
[38] Brian Bix, ‘Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage’ (1998) 40(1) William and Mary Law Review 145, 148.
[39]N Lauerman, ‘A Step Toward Enhancing Equality, Choice, and Opportunity to Develop in Marriage and at Divorce’ (1987) 56 Cincinnati Law Review 493, 514.
[40] Radmacher v Granatino [2011] 1 AC 534.
[41] ibid.
[42] ibid.
[43] Gail Frommer Brod, ‘Premarital Agreements and Gender Justice’ (1994) 6(2) Yale Journal of Law and Feminism 229.
[44] Radmacher v Granatino [2011] 1 AC 534.
[45] Samuel Jed Dalling, ‘Regulating Prenuptial Agreements: Balancing Autonomy and Protection’ (Durham University 2013) Durham Theses.
[46] Law Reform Committee of Family Law Association, Submissions in Relation to Pre-nuptial Agreements (2007)<www.familylawyers.ie/submissions/LawReformPrenuptialAgreeements.pdf> accessed 28 February 2023.
[47] ibid.
[48] Erika Coughlan, ‘The Future of Pre-nuptial Agreements in Irish Law in Light of Recent Developments in the United Kingdom’ (2014) 17(4) Irish Journal of Family Law 98.
[49] Brian Barry, ‘Modernising the Law on Prenuptial Agreements in Ireland’ (2009) Trinity College Law Review 12(1) 96.
[50] ibid.
[51] See Lucy-Ann Buckley, ‘Autonomy and Prenuptial Agreements in Ireland: A Relational Analysis’ (2018) 38(1) Legal Studies 164; Department of Justice, Equality and Law Reform, Report of the Study Group on Pre-nuptial Agreements (Government Publications 2007) [Study Group].
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