Michael McDowell (Dublin South East, Progressive Democrats)

Pre-nuptial agreements between two persons who intend to marry each other are intended to settle, in advance of their marriage, financial and property matters as well as other issues, including child custody arrangements, both generally and in the event of the breakdown of the marriage. The motivation for the parties to a pre-nuptial agreement may be to make a pre-marriage contract for the division of assets to ensure some certainty for both parties as to property rights in the event that the marriage fails.

I agree with Senator Browne and Senator Brian Hayes that this discussion is not about whether the House is concerned with romantic or less romantic marriage. We live in a society which is very different from the one in which I grew up. When Senator Brian Hayes referred to planning his first campaign in favour of divorce at the age of 16 or 17 years, I was struck by the fact that when I was of the same age, people tended to get married at the age of 18, 19 and 20 years. In particular, the have nots, those with few assets, frequently got married at that age. Demographics have changed completely and, as Senator Browne pointed out, people do not now get married until well into their 30s when many of them have already accumulated a considerable degree of wealth.

A further issue to arise in this context is second marriages as people who have had a marriage may wish to remarry. People are now in a much different position from those in the 1950s, 1960s and 1970s who married in their late teens or early 20s with no assets to their name and saved for years to buy a wedding ring.

Whatever their motivation, pre-nuptial agreements were traditionally held by the courts to be void on public policy grounds on the basis that no contract envisaging the dissolution of a marriage should be enforceable. The removal of the constitutional prohibition on divorce has weakened that public policy justification for obvious reasons. Nonetheless, the treatment of pre-nuptial agreements in law must still be considered in the context of the constitutional provisions relating to marriage.

When contemplating this debate I was struck by the Supreme Court decision in 1993 on the Article 26 reference to legislation on the matrimonial home. It will be remembered that at that stage, the Government proposed that, henceforth, family homes should be automatically shared between husband and wife on a 50-50 basis. The Supreme Court stated — this was before divorce was introduced — that couples getting married had autonomy in these matters and it was not open to the State to presume to tell them how they should divide their principal asset, their matrimonial home.

Although the constitutional matrix has changed because the Constitution makes provision for divorce, which is made contingent on proper arrangements being made for dependent spouses and children, if any, nonetheless one must ask whether it is not implicit in the 1993 decision of the Supreme Court, which struck down the Government's Bill as unconstitutional, that the State recognises people have the right, in entering a marriage, to make arrangements and agree to share, at that stage, the family home in a particular way and that they cannot be dictated to by legislation. A further question then arises. Is it the case that arrangements made before a marriage are to have no value attached to them because of an early 20th century view of where public policy lies?

There is good reason for people to enter into a pre-nuptial agreement and it has nothing to do with whether they are romantic or unromantic. In many cases both parties to a marriage have their own set of assets. Frequently, both will have a house or apartment — I have seen this myself — and must decide what to do with them, for example, whether to rent out one and live in the other. It is perfectly reasonable for people in those circumstances to come to a clear and explicit understanding about the extent to which they are pooling their assets in the context of their marriage. There is nothing unwise or foolish about such an approach.

Senator Brian Hayes and Senator Browne referred to the question of no fault divorce. The courts are not, either in the context of separation or divorce, focused on the issue of who is to blame. This is an advance on one level because it means that these things are not pitched battles of the worst kind in which moral blame is established on the part of one person or the other.

However, if one has no fault divorce as well as the right for a court to make major decisions regarding the assets of the parties, a second question arises which we cannot pretend away. If one person is manifestly responsible for the end of the marriage, should he or she profit by his or her actions or behaviour? We have, largely speaking, swept this issue under the carpet because it is politically correct to state we want no fault divorces and fairly simple rules as to what happens when a marriage breaks down. The conduct of the spouses is an issue that can be brought onto the playing pitch when deciding how assets should be divided if it is such that the court finds it would be unjust to disregard it. That is fair. A no-fault divorce goes in one direction, but where serious assets and wealth division is taking place between spouses, conduct must be a relevant issue, and we cannot pretend otherwise.

Under the Constitution the function of a court in a separation or divorce is to ensure there is adequate provision made for each spouse and the dependent children of a marriage. All property is made available to the court for that purpose, including contingent interests and pensions. We are discussing whether the intentions of the parties going into the marriage should be capable of being taken into account and, if so, what weight should be given to them. I agree with Senator Browne that it would be wrong to have an absolute rule that in every circumstance, no matter what, a pre-nuptial agreement excludes all rights to maintenance or custody. The current situation is unhappy and increasingly untenable. It seems to imply that the views prior to marriage and the understanding of people who marry each other as to what they intend to do with their property, and the extent to which they want to make a community of property between them and have their assets available to each other in the event of a breakdown, should be ignored or regarded as irrelevant or void on grounds of public policy. Between the extreme of the public policy prohibition of having regard to pre-nuptial agreements and that of saying they must be in all cases and in every way determinative of the issues regardless of the merits and justice of the situation, most people would see there must be a middle course.

This brings us to the issue of what we should do. The motion suggests the Attorney General should ask the Law Reform Commission to inquire into the matter. My Department examined that proposal and for practical reasons, including the fact that the Law Reform Commission is busy with other work, decided it would be better to establish our own process. That is the reason for the Government amendment. I want to establish a small, but experienced and well-endowed committee, the purpose of which would be to examine this issue, find the middle territory, see where we should allow the pendulum to rest between the two extremes and work out the best way forward.

I agree with Senators Browne and Brian Hayes that we cannot run away from this issue because it is unpleasant to publicly contemplate the reality of marital breakdown or division of assets. While it is nicer to talk in public about dewy-eyed romanticism and optimism in the context of a conjugal relationship, that is not the role of legislators.