Fergal Browne (Fine Gael)

I move:

That Seanad Éireann:

calls on the Attorney General to request the Law Reform Commission to produce a report examining the current status of Pre-Nuptial Agreements in Irish Courts; and to investigate the consequences of their possible introduction and the impact on the constitutional and legal rights of spouses and children; and that this Report to be laid before the House within a period of 9 months or sooner if possible.

This issue has interested me for a long while. It received a lot of publicity through celebrity weddings such as that of Michael Douglas and, more recently, Michael Flatley. It also received publicity through recent news on the divorce proceedings of Sir Paul McCartney. However, my interest in this area comes from the angle of the ordinary person who may not realise he or she owns considerable assets prior to marriage. The average age of brides and grooms has increased from the mid-20s in 1986 to the mid-30s in 2002. That average age is increasing but they are the most up-to-date figures available.

It is not uncommon for both members of a young marrying couple to own property acquired independently of each other. A considerable group of Irish people re-marry later in life. In 2002, 30,529 such people were in the State. This figure is set to increase further in coming years.

Unfortunately, every year 6,000 Irish couples formalise their marriage breakdown in Irish courts either through divorce or a judicial separation. In Ireland one in four marriages breaks down, compared to one in three on the European mainland and one in two in the United States. Unfortunately, Ireland is catching up on our European and US colleagues. It is also worth noting the high rate of marriage breakdown among newlyweds together for less than two years.

At present, 15% of marriages in Ireland are bi-national. Given that under a EU convention known as Brussels 2 people can shop around jurisdictions for a divorce, regimes operating in other countries have become extremely relevant. Ireland and Britain are the only countries in the EU that do not have legislation on pre-nuptial agreements. Given the significant numbers of Irish citizens marrying outside the State, this could lead to severe difficulties. For example, if a person signs a pre-nuptial agreement in France, is it enforceable here? Unfortunately we are in a twilight zone on that issue. Legislation in this area has also been promised in Britain, and if it becomes law there, we will be the only EU state without it. In Britain at present, pre-nuptial agreements are being taken into account during divorce cases even though, strictly speaking, they are not legal.

My motion seeks to clarify the role of pre-nuptial agreements in Irish courts and to investigate any possible downside to their introduction. Currently nothing prevents couples from signing a pre-nuptial agreement in Ireland but Irish courts are not obliged to enforce such an agreement should the parties divorce or separate at a later date.

I can see great advantage in pre-nuptial agreements, particularly for those remarrying later in life who have children from a first marriage. It is logical that ten years after the passing of the divorce referendum, where a couple opts to have a pre-nuptial agreement, the State should recognise it and it should be taken into account in the case of a divorce or legal separation. A pre-nuptial agreement or statement of assets prior to marriage could help to resolve many difficulties both during and after marriage breakdown. Pre-nuptial agreements are an integral part of the family law system in many EU states, Canadian provinces, US states and in New Zealand and Australia.

I do not, however, believe pre-nuptial agreements should be legally binding because that would not take into account circumstances changing post-marriage, where one partner could opt out of the workforce to rear children and, therefore, could be at a disadvantage. At the moment, under the Family Law (Divorce) Act 1996, in section 20, judges take into account during divorce cases and legal separation agreements issues such as income earning capacity, property, other financial resources of each spouse, financial needs, obligations and responsibilities, the standard of living enjoyed by the family concerned before proceedings were instituted, the age of each of the spouses and the physical or mental disability of either spouse. Provision should be made to allow judges to take into account pre-nuptial agreements, as they do currently with legal separations. Ideally, pre-nuptial agreements would be entered into following sound, independent legal advice for both parties. It would also be important that a complete disclosure of assets would take place prior to the agreement being signed.

Pre-nuptial agreements also have the advantage of protecting many family businesses and farms. The recent ruling by the British House of Lords, stating that a spouse is entitled to an equal share of the family assets after divorce, has caused concern here. They are useful in cases where the parents of a child may have helped him or her to purchase a house and the new spouse has not contributed to the same extent. Often the parents are more concerned about what will happen to assets if the child divorces. Such cases are becoming more common as a result of the increasing inaffordabilty of housing for young people.

By having a pre-nuptial agreement, conflict can be avoided in a marriage breakdown by resolving financial matters both during and after the relationship. It can help to avoid expense and delay of litigation and the uncertainty of outcome and would offer the ability to protect assets held prior to the commencement of the relationship through specific individual means independent of the marriage partnership. Many women in particular are earning higher salaries than their spouses so this is an issue that affects both men and women.

No doubt we will hear people saying pre-nuptial agreements are unromantic and that people who sign them are not as committed to the concept of marriage. I disagree. A pre-nuptial agreement is no different from someone taking out insurance on his car or home. Doing so does not mean he plans to damage either. If we were to agree that pre-nuptial agreements are unromantic then we could argue that making a will early in life means a wish to die early. That is clearly not the case.

The Minister will agree that in the last 30 or 40 years we have seen huge social and economic changes in this country. It is logical that ten years after the passing of the divorce referendum, the option of having a pre-nuptial agreement should be recognised and taken into account in divorce cases. Pre-nuptial agreements would help to remove tensions in the relationship for couples who have a disparity of assets. A pre-nuptial agreement could, in fact, enhance the rights of spouses and children. We should, however, call on the Law Reform Commission to investigate their possible introduction and I hope this motion will be accepted tonight.

We are now 30 years a member of the European Union and we should seek to harmonise our laws in this area and prevent Irish citizens married to persons outside the State facing legal ambiguity. We owe it to the many solicitors in the country who are getting an increasing number of requests from clients concerning pre-nuptial agreements to clarify their legal standing. The current set-up presents a dilemma for both solicitors and those seeking contracts.

I hope this debate will stick to the issues involved and not stray into a debate about romance. I firmly believe that the State should recognise pre-nuptial agreements and that if couples opt to have such an agreement, Irish courts will be able to take them into account. Alan Shatter, a leading expert on family law, recently wrote about the "chaotic and dysfunctional" state of Irish family law, which often leads to a "judicial lottery". By recognising pre-nuptial agreements, we would have a system whereby couples could regulate to some degree the contingency of marriage breakdown and which would allow them to write a road map for their marriage.

I hope sincerely that my motion is accepted and, if so, that the Seanad will take a leading role in this area. I hope that when the Law Reform Commission publishes its paper the Seanad will be in a position to bring forward legislation on this area, which may only involve adding in the words "and or pre-nuptial agreement" into section 20(3) of the Family Law (Divorce) Act, or may involve amendments to other legislation as well.

I thank my Fine Gael Seanad colleagues for allowing me the opportunity to debate this issue, and those outside the House, such as Geoffrey Shannon and Muriel Walls, who have written extensively on this area. I hope that we will begin the process of clarifying the role of pre-nuptial agreements and their possible introduction in Ireland in tonight's debate.