Ask a solicitor: Should I think about a pre-nuptial agreement?

We don’t yet have children, but we do want to start a family at some point, although we don’t see that happening for quite a few years.

I am a farmer and have taken over the family farm from my parents who are elderly. My father is in a nursing home as he has dementia, and my mother still lives in the family home with me. 

My fiancée recently rented out her flat and moved in with us. A few of my relatives have suggested that I get a pre-nuptial agreement drawn up before the wedding to protect myself in case the marriage doesn’t work. What do you think? Is this a good idea?

Dear Reader,

Congratulations on your upcoming wedding. We often hear about pre-nuptial agreements in the media when high net-worth individuals or celebrities marry. 

However, you don’t have to be a celebrity to have a prenuptial agreement, and they can be helpful in some cases, particularly where parties have personal assets obtained before they enter marriage.

A pre-nuptial agreement is an agreement between two people who plan to marry about what will happen in the event of a separation in terms of any property, assets, maintenance, custody of any children, etc. 

The agreement usually sets out what should happen to assets each party has entering the marriage as well as any assets obtained during the course of the marriage. 

Often people want to protect the property that they own. In your case, it could be that your fiancée wishes to retain the flat she has in her name and you wish to retain the family farm in the event of a divorce.

In Ireland, pre-nuptial agreements are not legally binding. That means that if you divorce in the future, the Judge dealing with your divorce is not bound by the terms of the pre-nuptial agreement.

However, that being said, if there is a pre-nuptial agreement in place, the court will often use it as a guide when determining a settlement in divorce or judicial separation agreements. However, it is important that a pre-nuptial agreement is properly drafted and has made proper provision for both parties. 

If this is the case, it is more likely that the court will give weight to the terms of the agreement. It is also important that the pre-nuptial agreement is entered into in advance of the wedding and not in the days before. Further, it is important that no undue influence or duress is exerted on one party to enter into the agreement.

Prior to the drafting of a pre-nuptial agreement, there needs to be full financial disclosure between the parties. Both parties will need to have sought legal advice on the terms of the pre-nuptial agreement, and it will need to be signed by both parties and their solicitors.

It is also advisable that reviews be built into a pre-nuptial agreement to take place periodically, e.g. every five years, on the birth of any child of the marriage and also if there is a major change to one party's financial circumstances.

The issue of dependent children and spouses is very important, and the court, in any divorce or judicial separation proceedings, wants to ensure that they are provided for.

In conclusion, although pre-nuptial agreements aren’t strictly legally binding, a properly drafted one that makes proper provisions for both parties can be quite persuasive to a court in any divorce or judicial separation proceedings.