Martin Mansergh (Fianna Fail)

——and to parts of which a spouse, after a relatively short marriage, might not gain access as a result of a settlement.

Let us be brutally clear. In whose interests are pre-nuptial agreements? Basically, they relate to people who are better off and who have more assets and financial resources. They represent a way of cutting back on the legal and equality requirements in cases involving separation and divorce. One could argue that the underlying tone of the motion is far from progressive and that it is really in the interests of asset-holders. There are many high-profile cases involving celebrities where such matters arise.

I am aware that a pre-nuptial agreement was enforced in 1950. This agreement did not relate to divorce or what would happen to property following a separation, rather it involved how children should be brought up in a religious sense. I refer here to the famous Tilson case and the pre-nuptial promise to bring up a child in a particular way. In Protestant circles, the case is not one of good reputation. The agreement related to a period when denominational influence was at its height and should never have been legally enforceable.

I foresee many problems with what Senator Browne is attempting to achieve. With the exception of what occurs in short marriages, people's situations develop and change so much and children may be involved. In many cases, the balance of power often shifts — this may take some time — after people are married. Somebody who may, for whatever reason, be in a much weaker position prior to marriage and who is keen to be married might subsequently find themselves in a much stronger position. Such a position might not be one of dominance but it could be one of equality and they might come to regret what they had agreed to pre-marriage.

I am not hugely enthusiastic about the motion because, at its core, it detracts from people's rights. People would be obliged to sign away or renounce their rights well in advance of marriage. With the exception of marrying a serial monogamist who changes spouse every two or three years, one cannot possibly foresee how matters might develop.

Senator Browne suggests that there should be clearly enforceable mechanisms in this area. I disagree with him in that regard. A previous speaker referred to Alan Shatter stating that the family courts are in some way dysfunctional. As regards enforcement, judgments are made, often on the basis of incomplete information regarding people's assets, their move to Spain or whatever, and people do not actually do what is required of them by the courts. In that context, adequate enforcement mechanisms do not exist. Separated spouses might obtain what, in theory, appear to be generous settlements but their solicitors and barristers then take a large slice and they are left with much less than they might have imagined.

Before we discuss enforcing pre-nuptial agreements, would it be possible to have more effective enforcement in respect of divorce and separation settlements and the payment of maintenance? The law in this regard is very unsatisfactory and people are being left in difficult situations. In theory, the law functions but much of the time it does not do so in practice.

I agree with the carrying out of a study. We should, however, be slow to legislate in haste and repent at leisure.