Fergal Browne (Fine Gael)

I thank those who have spoken during this debate and I thank the Tánaiste and Minister for Justice, Equality and Law Reform for his frankness. At times we may become disillusioned with politics, but today the Seanad has justified its existence as we have taken a lead on an issue that has not been addressed elsewhere.

There have been huge social and economic changes in the past 30 to 40 years. I am not sure when the late Charles Haughey introduced the Succession Act but it was appropriate in its time and still is in many cases. However, it has become outdated because it does not take account of the huge wealth possessed by some people today. I welcome that this concept is going forward with a working group as recommended by the Tánaiste and Minister for Justice, Equality and Law Reform, though I recommended it go forward with the Law Reform Commission. It makes little difference in either case as both will allow people to make submissions and the points made here and elsewhere can be made again to the working group. We have started the debate tonight. Ireland was a different country 40 years ago at the time of the Succession Act. Who would have thought we would have the wealth we now do?

The debate tonight has been honest and frank. If those opting for pre-nuptial agreements had the same frankness and honesty prior to marriage, fewer would break down. I see great advantages in pre-nuptial agreements and I make no apology for that. Imagine a couple, both remarrying in their 60s and financially independent, who will not have children but may have children from their first marriages. A pre-nuptial agreement could clarify potential problems and tensions at a later stage. A pre-nuptial agreement could be also useful in the case of a marriage that lasts only six months. Unfortunately many marriages break down within the first two years. I know a lady whose marriage broke down on her honeymoon. Such situations occur.

I accept that complexities arise in the case of marriages that last ten, 15 or 20 years and where children are involved. I am keen to stress that if pre-nuptial agreements come into law they should be taken into account by judges using their discretion. I would not like to be a judge in a family law case as they can be very difficult with so many factors involved. Under the current divorce legislation, the judge already takes into account numerous factors. I suggest a pre-nuptial agreement should be another such factor, though it should not be legally binding.

It was thought the weak person in a relationship might get a raw deal. In my view, as I have said, if pre-nuptials were to come into a play, they should be signed only following sound independent legal advice. As with any legal document, one does not rush in and sign it. It is imperative to get good independent legal advice. By taking such agreements into account the option is left open to a judge to hear somebody's case who might plead that he or she signed a pre-nuptial in a haze of love, under pressure or whatever. The option is available down the line to minimise the weight of a pre-nuptial. That is why I would not favour the legally binding option, which is just not relevant.

I have a question to pose, which no one in the House can answer. How many people in the country are reluctant to get married because of the absence of pre-nuptials? Perhaps there are persons who have been married and are now living with partners whom they would like to marry, but are reticent and reluctant because of past experience. If pre-nuptial agreements were introduced in Ireland, one might see an increase in marriage. This is not entirely impossible. I accept the point made by Senator Ó Murchú to the effect that the opposite might happen. We do not know. That said, when the divorce referendum was initially being spoken about, I presume people painted a picture that if it were introduced there would be chaos and marriages would be broken up and so on. In so far as I am aware marriage breakdowns have not gone through the roof and I believe many marriages are now far healthier because of the option of divorce. Many modern wives and husbands will not put up with the nonsense with which married people had to live in the past, when they had no option but to stick with it. I put this forward as a counter argument.

I shall conclude by referring to Senator Mansergh's contribution. A recent case in England concerned a marriage which had lasted three years, with no children involved. The wife brought no material benefit to the marriage, yet when it was dissolved she was entitled to 50% of her husband's assets. That is not equality. She did not contribute to his assets in the first place. She certainly deserved a share of them, but not 50%. I see equality working both ways and the Minister referred to that in his speech. I have spoken about the judge having the discretion to weigh up pre-nuptial agreements.

I fully agree with the Minister in relation to no-fault divorce, but that is an argument for another day. However, I genuinely appreciate the support given to the motion by the House. I have the impression that it was more acceptable to the Progressive Democrats Members on the Government side than their Fianna Fáil colleagues. Nevertheless, I look forward to the working group setting about its difficult task. We all accept it will not be easy, but certainly we have justified our existence in the Seanad today and begun a process which hopefully will be concluded in the next few months. There might be time to legislate on it in this Seanad, if not, the next.