Joe O'Toole (Independent)

I thank and congratulate Senator Browne for putting down this important motion. The Minister's points are well made. In approaching this issue I was instinctively and clearly in favour of the concept of pre-nuptial agreements. That was until I examined the issue and read and thought about it. The more I did that, the more confused and uncertain I became. I accept the points the Minister put forward.

I have examined the Brehon laws and how they dealt with this issue. It is always good to see how matters were dealt with in earlier times. Under the Brehon laws there was the concept of a trial marriage for a stated period, at the end of which the marriage could either be dissolved or formalised. In general, the woman remained the sole owner of property that had been hers prior to the marriage, regardless of what happened. In cases of legal separation for good cause, the wife not only took all her marriage portion of gifts but an amount above and beyond that for damages.

The laws recognised various levels and degrees of marriage but the theory on which they worked in cases involving property was that what people owned before the marriage remained theirs in the event of a dissolution. What was created in the currency of the marriage was available for division. It is a sensible basis to be kept in mind when examining this matter. It does not answer all the questions put forward by the Minister or deal with the scenarios put forward by Senator Browne. However, it is a basic point to move towards in terms of how we should approach the issue.

The weakness of the pre-nuptial agreement is that it only anticipates one circumstance, a dissolution. It does not anticipate the circumstances relating to children or property beyond that. There could be a situation where a couple enter into such an agreement and buy a property. Subsequently they buy a second property, for example, because one of the spouses, the wife, suffered from arthritis so it was necessary to get a single storey property. Let us say it was agreed in the pre-nuptial agreement that this woman would always retain in her family, to be passed on through her children, the four acres behind the house that she got from her father. In the case of dissolution there could be a situation where the husband would be left with two houses that were hugely encumbered with big mortgages and no assets. That would clearly be unfair.

In the pre-divorce situation, when marriage was indissoluble under the Constitution, would it not be fair to describe a pre-nuptial agreement as contrary to public policy? I believe it would have been. This is irrelevant in the current situation except with regard to gaining an understanding of the situation. We must have an understanding of these things so we can move forward. The law has made marriage a simple but solemn contract. It is entered into optimistically, despite the risks, and in a spirit of equality. Perhaps it should be a guiding principle that if this is an equal contract, people should also emerge from it with equality whatever the reasons for the dissolution.

We made marriage a simple contract because the most simple people can enter into it. It is perhaps the most important contract people enter into and, in many ways, it is the contract that most people understand. It must, therefore, have ease of access and ease of general understanding for ordinary people. A democracy has a judiciary in an effort to provide the wisdom of Solomon. When a judge has a marriage dissolution before him or her, he or she must make their decision taking account of the various issues listed by Senator Browne and which are required under legislation. They include any arrangements arising from a separation. The list does not mention pre-nuptial agreements.

Where should a pre-nuptial agreement fit in the scheme of things? The legislation states that the judge must make proper provision for all the people involved, that is, the two partners, the children and any other dependants. If the pre-nuptial agreement cuts across proper provision for the people involved, reason would dictate that it should not take precedence. On the other hand, if there is a pre-nuptial agreement that was entered into fairly and honestly by both partners and which allows for proper provision, therefore not requiring the judge to go against the legislative requirement to make proper provision, it could be taken into consideration. That would be an acceptable position.

The pre-nuptial agreement anticipates only one circumstance. It is basically an insurance policy against falling out of love. An honest conclusion would be that account is taken of the importance of the point made by Senator Browne as well as the great number of variables that must be considered, all within the context of making proper provision as is required by the law and anticipated by the Constitution. One of the matters to be taken into consideration would include the pre-nuptial agreement. It should be taken into consideration but it should not be able to over-ride all the requirements of making proper provision.