Farm Legal Advice: Is there any value in prenuptial agreements anyway?
While there is no legislation in Ireland that explicitly prevents a couple from making a prenuptial agreement, the courts will be reluctant to enforce one if it fails to make proper provision for each spouse and any dependent parties.
During the Johnny Depp and Amber Heard defamation trial, the world watched on as every aspect of their marital union was dissected in a courtroom and put on display for the whole world to judge, leaving both of them in a vulnerable position.
Of course, for most people, such a public lawsuit is not a concern. However, divorce is a more realistic life event that happens constantly and the fear over how it can play out is definitely a worry for people.
In Depp and Heard’s case, there was no prenuptial agreement, therefore leaving them not only financially vulnerable but also exposed to lawsuits from one another as there was no confidentiality clause.
A pre-nuptial agreement is a written contract created by two people who are planning to be married. It is essentially a contingency plan that outlines what each spouse has in terms of assets and liabilities and specifies what should happen to these if the parties seek a divorce.
Premarital agreements are particularly recommended in circumstances where there is a family business such as a farm, either party owns substantial assets, or there are children from previous relationships or former spouses to consider.
For those in the farming community, prenuptial agreements are definitely something that should be given considerable thought before tying the knot.
Pre-nuptial arrangements also play an important role if you own your own farming business in that they protect your interests in the business and prevent your former spouse from having control or involvement in the business following a divorce.
Although there is no set formula for a prenuptial agreement, the kind of agreement used by most couples would be fairly straightforward, stating that the property owned by each party prior to marriage will remain theirs should the relationship end, and set out provisions on what would happen to property acquired during the marriage.
While there is no legislation in Ireland that explicitly prevents a couple from making a prenuptial agreement, the courts will be reluctant to enforce one if it fails to make proper provision for each spouse and any dependent parties.
Therefore, it is imperative that couples are completely transparent about their existing assets and liabilities when making one, as well as being reasonable when deciding on the apportionment of assets that were acquired during the course of the marriage, such as properties and finances.
So, what can be done to ensure a judge takes a premarital agreement into account during divorce proceedings? Firstly, the agreement must be in writing and it should be signed and witnessed no less than 28 days in advance of the wedding. It is crucial that both parties seek independent legal advice prior to signing and there can be no duress put on either party to sign.
Family members, even those who are stakeholders in a business or in assets belonging to either party, should not become involved. Otherwise, the court may construe their involvement as pressurising the parties to enter the premarital agreement and therefore might negatively impact the prenuptial agreement validity or enforceability.
The key advice to a client would be to speak with their partner and be honest with him or her as to why they wish to enter into such an agreement and as to what assets they wish to account for.
I also recommend that anybody considering a prenuptial agreement get independent legal advice from their solicitor.
