Kathleen O'Meara (Labour)

I commend Senator Browne on bringing forward the motion and I welcome this useful debate. This issue is worthy of further study. Like Senator Mansergh, however, I have concerns regarding how what is being sought in the motion would work in practice. That is why I would welcome the compilation of a further study on the matter. My initial reaction is one of concern in respect of the rights of, in the main, female spouses in the event of pre-nuptial agreements taking precedence over existing family law provisions. Senator Mansergh outlined many of my concerns in this regard and I thank him for doing so.

A legal expert, Mr. Geoffrey Shannon, was quoted recently in the newspaper as saying that the pre-nuptial agreement is "an idea whose time has come" and the Minister referred to it being a feature of early 21st century Ireland. We have reached a stage where more people own more property and the issue of the ownership thereof arises in the context of marriage. If, however, we consider this matter in that light, we must discuss the concept of "what is yours is yours and what is mine is mine" and people entering marriages with that being understood. I could not support such a concept. Like Senator Mansergh, I would be obliged to question whether such an approach would be progressive.

As the Senator has pointed out, circumstances change even in the context of a short marriage. People enter into marriage in particular financial circumstances and with a particular relationship. However, people, times and situations change. While the context in which a pre-nuptial agreement might be arrived at — possibly for many good reasons — can change very quickly, such a pre-nuptial agreement would still remain. Senator Browne's aim is that such pre-nuptial agreements should have the recognition of a court. The question then arises as to what status they would have in respect of existing law. I refer to the Family Law Act, which is designed to protect the interests of all spouses and children and, in particular, the need for women to be supported in the event of a family breakdown.

Senator Mansergh referred to this issue and all Members are familiar with it. Women at the end of their tether have approached me in an effort to secure the enforcement of maintenance agreements. In many cases, such agreements are with men who are self-employed and whose assets cannot be assessed satisfactorily from the court's perspective. Frequently, an attachment of earnings cannot be made regarding such people because they are not PAYE earners or are not in employment in which there is access to such an arrangement. Such women are often left to raise children on their own and to live off the State, having been abandoned, effectively. I have encountered some cases in which former spouses or husbands who no longer live with or support their wives have used their own resources to go to court to find all means of ensuring such support would not be forthcoming and to ensure the wives would not get their hands on their spouses' property. Members are aware this is happening and it is very difficult.

Family law and managing marital breakdown is a seriously difficult area. While I did not work directly with the former Minister for Equality and Law Reform, Mr. Mervyn Taylor, I did work with a Minister who served in that Government. Consequently, I know major discussions took place at the time in an attempt to cover every scenario. Members should consider an example in which a couple who marry have equal earning power and continue to earn after marriage. Subsequently, they separate and a settlement is reached. Thereafter, one of them wins €10 million in the lottery and a different scenario arises. One spouse is now in an entirely different position regarding the maintenance or support of the other spouse and any children. What would happen under such circumstances?

Circumstances change constantly and, while the aforementioned example might sound wild and wonderful, people inherit property, become ill, lose their jobs or can no longer work. All sorts of scenarios arise, such as having children or having a child fall ill. Consequently, the pre-nuptial agreement exists in the context of the time before people became married. However, when people marry and move into a new situation, life turns up in many weird and wonderful ways and the context can change entirely. These are some of the matters that would require extremely careful management. A situation in which a pre-nuptial agreement is recognised by the court is in itself problematic and must be carefully considered and managed.

Court judgments and settlements in the area of divorce and family law are still in a state of evolution in this jurisdiction. In recent times, two major judgments have been made in Britain to which Mr. Geoffrey Shannon's article refers, namely, the Miller and McFarlane cases. Senator Browne is probably familiar with them. While neither case involved a pre-nuptial settlement, the courts continually make judgments on family law cases and issues in respect of property and marriage even before the question of pre-nuptial agreements is raised. It is not a simple matter of having them recognised or otherwise by the courts.

While I welcome this study, with Senator Mansergh I must place my own concerns on record. As a legislator, I would not support the idea of pre-nuptial agreements being recognised by the courts unless I was totally assured the interests of all spouses and children are maintained. Some recognition of changed circumstances between the establishment of a pre-nuptial agreement and a post-wedding scenario would be essential, particularly in the event of major change taking place. It would be necessary to put in place such a structure to ensure fairness and equality apply and all spouses are protected.

I join Senator Mansergh in taking this opportunity to appeal to the Government to do more to ensure maintenance agreements are upheld and to make resources available to family law courts or wherever such resources are required. Many spouses, predominantly women, are treated extremely badly and are left with little or no resources to pursue an errant spouse. Members cannot continue to tolerate this.