‘Pre-nup’ offers peace of mind

Dear Karen,
I’m getting married next year, to a girl I’ve been going out with for seven years.
We’ve been living together for the past three years, in a rented house in the local town.
She’s a primary school teacher.
We’re building a house on my parent’s farm, which I am due to inherit. I’m currently in a farm partnership with them.
We’ve had a savings account for the past three years and that is paying for the house, along with a small mortgage we took out.
I spend most days in my parent’s house as I’m working on the farm full-time.
One day, over dinner, my mother asked me if we were going to have a pre-nuptial. I hadn’t considered it before, but the farm has been in the family for a number of generations and I think they are concerned about their own security. They are in their 70s.
Is a pre-nuptial worth getting?

‘Pre-nup’ offers peace of mind

Dear reader,

Congratulations on your recent engagement!

A pre-nuptial agreement is certainly an option you should consider, although nobody wants to enter into a marriage contemplating splitting up, so it is often difficult to broach the subject with a fiancée. However, it is worthwhile considering when you are the owner of a valuable asset, such as a farm.

I note you are in a farm partnership, and you and your parents will want to protect the farm.

Farms are often passed from generation to generation of a family, and you and your family may wish to avoid the risk that a farm is transferred to your spouse or sold on foot of a court order for judicial separation of divorce.

Pre-nuptial agreements can provide many couples with peace of mind prior to entering into marriage, and can potentially reduce conflict if the marriage fails. They may also potentially save on legal costs, if the terms of agreement are considered by the court, or if the parties agree the terms by consent, in the event of marital breakdown, rather than engage in a fully contested separation or divorce.

A pre-nuptial agreement is a formal agreement which may be drawn up between parties to a future marriage.

The agreement sets out how they would like to divide their assets in the event of a future divorce, and will also deal with matters such as pensions and succession rights.

An example of a pre-nuptial agreement would be where it sets out that the property owned by each person prior to marriage will remain theirs, should there be a marriage breakdown, and any property acquired during the marriage would be jointly distributed.

The agreement should clearly state what the separate assets are, they should be listed in a schedule annexed to the agreement.

In respect of the house you are building, please note that once you are married and are living on the property, the house would be a family home under Irish legislation, and both husband and wife have automatic rights over the property and it cannot be sold without the other’s consent.

It would be difficult for the court to classify this as a separate asset, and it would be advisable to ensure that the house and surrounding curtilage/garden are separate from the family farm, and that the farm is clearly stated as a separate asset in the agreement.

Your solicitor can assist you with structuring this, it normally entails a sub-division of the existing land parcel or folio.

It is necessary to be aware that Irish courts are not bound by pre-nuptial agreements. However, depending on the individual case and circumstances, and where there is a properly drafted pre-nuptial agreement in place, the court will often use the agreement as a guide when deciding how assets should be divided.

To ensure pre-nuptial agreements are persuasive in court, there are certain elements that must be in place, such as the agreement must be made in writing, signed and witnessed no less than 28 days in advance of the wedding, both parties must be independently legally advised, and must make full disclosure of all assets before signing the agreements.

If you are considering obtaining a pre-nuptial agreement, we would recommend you instruct a solicitor with expertise to draft the appropriate agreement, but your partner will also need to receive legal advice before you both enter into the agreement.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

  • Email: info@walshandpartners.ie
  • Web: www.walshandpartners.ie
  • While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.

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