Fergal Browne (Fine Gael)
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I move:

That Seanad Éireann:

calls on the Attorney General to request the Law Reform Commission to produce a report examining the current status of Pre-Nuptial Agreements in Irish Courts; and to investigate the consequences of their possible introduction and the impact on the constitutional and legal rights of spouses and children; and that this Report to be laid before the House within a period of 9 months or sooner if possible.

This issue has interested me for a long while. It received a lot of publicity through celebrity weddings such as that of Michael Douglas and, more recently, Michael Flatley. It also received publicity through recent news on the divorce proceedings of Sir Paul McCartney. However, my interest in this area comes from the angle of the ordinary person who may not realise he or she owns considerable assets prior to marriage. The average age of brides and grooms has increased from the mid-20s in 1986 to the mid-30s in 2002. That average age is increasing but they are the most up-to-date figures available.

It is not uncommon for both members of a young marrying couple to own property acquired independently of each other. A considerable group of Irish people re-marry later in life. In 2002, 30,529 such people were in the State. This figure is set to increase further in coming years.

Unfortunately, every year 6,000 Irish couples formalise their marriage breakdown in Irish courts either through divorce or a judicial separation. In Ireland one in four marriages breaks down, compared to one in three on the European mainland and one in two in the United States. Unfortunately, Ireland is catching up on our European and US colleagues. It is also worth noting the high rate of marriage breakdown among newlyweds together for less than two years.

At present, 15% of marriages in Ireland are bi-national. Given that under a EU convention known as Brussels 2 people can shop around jurisdictions for a divorce, regimes operating in other countries have become extremely relevant. Ireland and Britain are the only countries in the EU that do not have legislation on pre-nuptial agreements. Given the significant numbers of Irish citizens marrying outside the State, this could lead to severe difficulties. For example, if a person signs a pre-nuptial agreement in France, is it enforceable here? Unfortunately we are in a twilight zone on that issue. Legislation in this area has also been promised in Britain, and if it becomes law there, we will be the only EU state without it. In Britain at present, pre-nuptial agreements are being taken into account during divorce cases even though, strictly speaking, they are not legal.

My motion seeks to clarify the role of pre-nuptial agreements in Irish courts and to investigate any possible downside to their introduction. Currently nothing prevents couples from signing a pre-nuptial agreement in Ireland but Irish courts are not obliged to enforce such an agreement should the parties divorce or separate at a later date.

I can see great advantage in pre-nuptial agreements, particularly for those remarrying later in life who have children from a first marriage. It is logical that ten years after the passing of the divorce referendum, where a couple opts to have a pre-nuptial agreement, the State should recognise it and it should be taken into account in the case of a divorce or legal separation. A pre-nuptial agreement or statement of assets prior to marriage could help to resolve many difficulties both during and after marriage breakdown. Pre-nuptial agreements are an integral part of the family law system in many EU states, Canadian provinces, US states and in New Zealand and Australia.

I do not, however, believe pre-nuptial agreements should be legally binding because that would not take into account circumstances changing post-marriage, where one partner could opt out of the workforce to rear children and, therefore, could be at a disadvantage. At the moment, under the Family Law (Divorce) Act 1996, in section 20, judges take into account during divorce cases and legal separation agreements issues such as income earning capacity, property, other financial resources of each spouse, financial needs, obligations and responsibilities, the standard of living enjoyed by the family concerned before proceedings were instituted, the age of each of the spouses and the physical or mental disability of either spouse. Provision should be made to allow judges to take into account pre-nuptial agreements, as they do currently with legal separations. Ideally, pre-nuptial agreements would be entered into following sound, independent legal advice for both parties. It would also be important that a complete disclosure of assets would take place prior to the agreement being signed.

Pre-nuptial agreements also have the advantage of protecting many family businesses and farms. The recent ruling by the British House of Lords, stating that a spouse is entitled to an equal share of the family assets after divorce, has caused concern here. They are useful in cases where the parents of a child may have helped him or her to purchase a house and the new spouse has not contributed to the same extent. Often the parents are more concerned about what will happen to assets if the child divorces. Such cases are becoming more common as a result of the increasing inaffordabilty of housing for young people.

By having a pre-nuptial agreement, conflict can be avoided in a marriage breakdown by resolving financial matters both during and after the relationship. It can help to avoid expense and delay of litigation and the uncertainty of outcome and would offer the ability to protect assets held prior to the commencement of the relationship through specific individual means independent of the marriage partnership. Many women in particular are earning higher salaries than their spouses so this is an issue that affects both men and women.

No doubt we will hear people saying pre-nuptial agreements are unromantic and that people who sign them are not as committed to the concept of marriage. I disagree. A pre-nuptial agreement is no different from someone taking out insurance on his car or home. Doing so does not mean he plans to damage either. If we were to agree that pre-nuptial agreements are unromantic then we could argue that making a will early in life means a wish to die early. That is clearly not the case.

The Minister will agree that in the last 30 or 40 years we have seen huge social and economic changes in this country. It is logical that ten years after the passing of the divorce referendum, the option of having a pre-nuptial agreement should be recognised and taken into account in divorce cases. Pre-nuptial agreements would help to remove tensions in the relationship for couples who have a disparity of assets. A pre-nuptial agreement could, in fact, enhance the rights of spouses and children. We should, however, call on the Law Reform Commission to investigate their possible introduction and I hope this motion will be accepted tonight.

We are now 30 years a member of the European Union and we should seek to harmonise our laws in this area and prevent Irish citizens married to persons outside the State facing legal ambiguity. We owe it to the many solicitors in the country who are getting an increasing number of requests from clients concerning pre-nuptial agreements to clarify their legal standing. The current set-up presents a dilemma for both solicitors and those seeking contracts.

I hope this debate will stick to the issues involved and not stray into a debate about romance. I firmly believe that the State should recognise pre-nuptial agreements and that if couples opt to have such an agreement, Irish courts will be able to take them into account. Alan Shatter, a leading expert on family law, recently wrote about the "chaotic and dysfunctional" state of Irish family law, which often leads to a "judicial lottery". By recognising pre-nuptial agreements, we would have a system whereby couples could regulate to some degree the contingency of marriage breakdown and which would allow them to write a road map for their marriage.

I hope sincerely that my motion is accepted and, if so, that the Seanad will take a leading role in this area. I hope that when the Law Reform Commission publishes its paper the Seanad will be in a position to bring forward legislation on this area, which may only involve adding in the words "and or pre-nuptial agreement" into section 20(3) of the Family Law (Divorce) Act, or may involve amendments to other legislation as well.

I thank my Fine Gael Seanad colleagues for allowing me the opportunity to debate this issue, and those outside the House, such as Geoffrey Shannon and Muriel Walls, who have written extensively on this area. I hope that we will begin the process of clarifying the role of pre-nuptial agreements and their possible introduction in Ireland in tonight's debate.

Brian Hayes (Fine Gael)
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I second this motion. I thank Senator Browne most sincerely for giving us the opportunity to debate this matter, he has been a lone voice on this issue in recent years. It highlights the importance of this House in responding to an issue that some people feel should be addressed by way of legislative change. It is clear that the other House does not frequently have time for such debates because of the bear pit atmosphere that exists there. We have more time and the Seanad should be used to address such issues in a thoughtful and mature way. Senator Browne has made his case well and I thank him for doing so.

The Government amendment, which Senator Browne is happy to accept, is useful and I congratulate the Tánaiste for allowing the establishment of the high level group under the chairmanship of a senior counsel. That is a positive development whereby a body can produce a report after a time reflecting all the issues that will be raised during this debate. It can report to us and to Government on areas where the law must be changed, if necessary.

I fought my first campaign when I was 16, during the divorce referendum introduced by Dr. Garrett FitzGerald in 1986. The naïveté of the notion that a snotty-nosed 16 year old could lecture anyone about marital bliss is something I readily concede but that referendum was defeated because of opportunistic tactics on the part of the Opposition and because the ground was not clearly laid out in advance.

That mistake was put to one side during the first Labour-Fianna Fáil Government from 1992 until 1995, when there was significant change in divorce legislation, particularly the Judicial Law (Separation) Act, which was put in place before the issue of divorce was dealt with in the subsequent constitutional referendum. The Act introduced the principle of no fault divorce for the first time, albeit in the area of separation. This fundamental change in the law, the removal of the need for people to bear all before a judge to allow the court to determine whether they had a right to legally separate, was introduced by the then Minister for Equality and Law Reform, Mr. Mervyn Taylor. The only outstanding issue was addressed in 1996 when the constitutional prohibition on the right to remarry was changed by a slender majority in a referendum.

In changing the law in this area it is important to tread carefully because the principle of marriage enjoys a significant level of support. Divorce rates here are much closer to those in ostensibly Catholic countries such as Italy and Spain than those in other northern European countries. I am glad the suggestion made by many opponents of divorce more than ten years ago that the introduction of the Divorce Acts would open the floodgates has not materialised. Instead, people have come to use the law as a means of regularising their circumstances and, as such, securing a second chance.

The issue in this debate is whether two individuals entering marriage may make arrangements in a pre-nuptial agreement and ensure that the provisions into which they have freely entered are upheld in the courts in the unfortunate event that their marriage breaks down. This is the legal doubt which must be addressed in the review about which Senator Browne spoke. It would be worthwhile to determine once and for all the answer to this question.

Notwithstanding the romantic notions a couple may have, parties to a marriage must enter into it with their eyes open. Given the cost of property and the extensive assets some parties may bring to a marriage, it would be sensible to provide legal certainty for pre-nuptial agreements to ensure people do not have the rug pulled from under them, as it were, in the High Court or Supreme Court. The principal point in this debate, as set out by Senator Browne, is that people who choose to enter into pre-nuptial arrangements require guarantees that the arrangements they have made will be upheld by the courts in the unfortunate event that their marriage union breaks down.

I welcome this debate and look forward to Members' contributions. I thank the Government for the measured response it has taken in the amendment. Together, we can address this issue to determine if the law needs to be changed, the scope of any such change and when it is to be brought about.

Martin Mansergh (Fianna Fail)
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I move amendment No. 1:

To delete all words after "Seanad Éireann" and substitute the following:

", noting that policy in the law on proper provision in divorce proceedings is circumscribed by the Constitution and that the law already gives some recognition to pre-nuptial agreements, welcomes the decision of the Tánaiste and Minister for Justice, Equality and Law Reform to commission a study of the operation of the law in this area and to publish the results of that study in due course.".

I reserve my speaking rights until later.

Michael McDowell (Dublin South East, Progressive Democrats)
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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.

Joe O'Toole (Independent)
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Let us have some optimism and romance here.

Brian Hayes (Fine Gael)
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The Minister never allows us any.

Derek McDowell (Labour)
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That Mills & Boon function is for the artists and authors in our society. Legislators have to deal with reality. My Department's aim is to deal with this expeditiously, to establish this group, to have a highly-qualified chairman, to set a reasonable timeframe for a report and to allow the Minister and the Department to bring that report to the Oireachtas for consideration in short order. As Senator Browne said, the situation is unsatisfactory. Between the two polar extremes of possible values to be attached to pre-nuptial agreements there must be a middle way. It is not clear everybody has thought through all the implications. I do not criticise anybody. There are issues to which one would instinctively attach more weight than others. It is easier to attach weight to a pre-nuptial agreement on property than on custody rights because in guardianship and custody issues the interest of the child is paramount. Therefore, a pre-nuptial agreement is probably not worth the paper on which it is written. The court has to make a decision primarily in the interests of the child. When we talk about pre-nuptial agreements we should bear in mind that they are not limited to deciding property issues. Sometimes they purport to extend to other issues. These are the kinds of issues an expert group would have to examine. It would have to decide which categories are most important and whether we would ask a court to attach much weight to a pre-nuptial agreement that stipulated that in the event of a divorce the father should have custody of the children. What value would such an agreement, made before a marriage or a child even exists, have?

David Norris (Independent)
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The Minister is a dewy-eyed romantic. Children often exist before the marriage.

Derek McDowell (Labour)
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That is true. And in the case of second marriages there may be children who are outside the marriage. This is recognised in the Constitution. Their parents may want, when entering a marriage, to keep their assets available for their children and there may be good reasons for that. In some cases I can imagine it would lead to disharmony in a family if the main asset, for example a farm, was to go into a common pool while there were already 17 and 18 year old children farming it in the expectation they might succeed to it. We must consider many issues.

I thank the Senators for raising the issue. As the Law Reform Commission is not in a position to do an urgent report on this matter, the Government amendment is offered to make rapid progress on this issue and to enable the Houses to deal with it. It will not go away. The absence of pre-nuptial agreements is a social issue. Different demographic patterns, people marrying later in life with more assets, re-marriages and dependent children of the partners of marriages are phenomena of the early 21st century. They were not phenomena of the 1920s and 1930s when much of our pre-divorce jurisprudence emerged. I urge Senators to adopt the Government amendment as the fair way forward on this issue. I reiterate my thanks to the Members for the way this matter has been raised and dealt with.

Joe O'Toole (Independent)
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With the permission of the House, I would like to give my last two minutes to Senator Norris.

Paddy Burke (Fine Gael)
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Is that agreed? Agreed.

Joe O'Toole (Independent)
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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.

David Norris (Independent)
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I thank my colleague, Senator O'Toole, for sharing his time with me. When I looked at this matter, I thought it was another facile idea of the Government to amend it. I did not see the point in the amendment. Now I do, having listened to the Minister. The Law Reform Commission is over-burdened. The Minister has commissioned a special report and I take it that this is in response to the debate in the Seanad and the call from Senator Browne. I congratulate him on it. It does the Seanad a great deal of credit and there was considerable coverage in the political columns of this move.

It shows how our society is changing and becoming more sophisticated in its response to change. Until recently, marriage was indissoluble. If that was still the situation, this agreement would undermine it because it involves making an agreement before the marriage in anticipation of its potential dissolution. The pre-nuptial agreement protects people. We have seen the reports in the media about people of substantial wealth both in America and Britain who make these arrangements before marriage to protect themselves against the attentions of gold diggers. That is understandable.

However, we must examine marriage as a whole rather than pick at things piecemeal. Senator O'Toole said the most simple people are entitled to marry. They are not. I am not. Gay people are precluded from marrying even though we are part of the human spectrum. There is also the issue of foreign divorces whereby Irish citizens can be, and are being, disadvantaged. There is an ongoing case at present in which an Irish woman is being divorced by her husband in France. Her husband is a French citizen. She was starting proceedings here but he gazumped her and got into the French courts. The reason is that French courts have a tradition of protecting the male interests more effectively than the interests of the female spouse. We may well be seeing a type of cherry picking taking place, whereby European citizens can move their domicile and can decide, for their own advantage, to initiate proceedings in a court where they would get more favourable treatment. We must examine this situation.

My final point about the amendment is that it contains a final surviving absurdity, that is, it states that the law already gives some recognition to pre-nuptial agreements. However, I heard the Minister say that pre-nuptial agreements are traditionally held to be void by the courts. The Minister of State, Deputy Fahey, is signalling otherwise so perhaps the Minister said that they were previously held to be void. Perhaps the position has changed slightly.

I thank the Chair for allowing me to contribute to the debate. I would prefer this issue, which involves marriage, divorce, pre-nuptial agreements and the rights of same-sex couples, to be dealt with in its entirety.

Martin Mansergh (Fianna Fail)
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I compliment Fine Gael on facilitating the debate on this matter. I am somewhat dismayed that, as a result of the absence of various people, I am, pro tem, the family law reform spokesperson for this side of the House. However, that is no matter.

We all agree that this is a complicated and complex matter that needs to be carefully examined and that we must look before we leap. At an instinctive level — it is not my total response — I come at this issue with considerably less enthusiasm than Senator Browne. Earlier in the debate, there was an atmosphere that evoked the line: "Romantic Ireland's dead and gone." I had visions of a castle in west Cork——

Kathleen O'Meara (Labour)
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Or Mullingar.

Martin Mansergh (Fianna Fail)
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——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.

Kathleen O'Meara (Labour)
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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.

Labhrás Ó Murchú (Fianna Fail)
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I listened to the Minister's contribution and felt he struck the right note of balance. Based on his own legal background, it underlined many of the complexities involved and the harmonisation that must occur between the exercise of pre-nuptial agreements and the law as it exists at present. That note has been also struck by Senators O'Meara and Mansergh, which may be important at the beginning of the debate.

Nevertheless, I compliment Senator Browne on putting his head above the parapet, as this is a debate that should take place, particularly in the context of some recent high-profile weddings in Ireland. Members will have read about the pre-nuptial agreements involved. People are debating and discussing the question of how the law of the land stands regarding pre-nuptial agreements. If Members look back on one of the referenda on divorce, they may recall that inheritance rights set off alarm bells for women in particular that, to some extent, sounded the death knell of that referendum. It is now accepted inheritance rights are protected and this must be Members' primary interest.

I am unsure whether Senator Browne contributes to Hello magazine.

Fergal Browne (Fine Gael)
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I do not.

Labhrás Ó Murchú (Fianna Fail)
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One can hardly go into any doctor's surgery at present without being faced by a copy of Hello magazine. As one flicks through the pages, one can read about the marriages and divorces of celebrities, and there is generally an article on their nuptial agreements. Recently, I read of one well-known female film star who announced that she intended to marry for the ninth time. While I am unsure how much she has amassed or lost over the years as a result of pre-nuptial agreements, a note of added complexity is introduced when one begins to consider multi-nuptial agreements. Hence, Members must be particularly careful from the outset.

An aspect of the debate about which I have concern is that, in some way, the message might go out that Members are opening the door for the acknowledgement and legislation for pre-nuptial agreements. This would not be the correct thing to do because until very recently, pre-nuptial agreements were fantasies that took place in the international theatrical or film star world. Members may not have envisaged them in an Irish context and were always focussed on protecting the family inheritance and ensuring the weaker person would be protected by the State.

I listened to the Minister and I am certain he did not suggest legislators were not romantic. I understand his point to have been that their job is not to legislate for romanticism. However, that is a debate for another day. In fairness, one could also state that the time one makes a nuptial agreement is a time of emotional intensity in people's lives. Without being overly frivolous, one could go so far as to question whether some people are of sound mind when they enter nuptial agreements. I believe this is an issue that could come to the courts. We have seen the law become flexible, with parameters removed we thought would never be removed. We must remember that people in such circumstances are vulnerable, particularly those who may not have the wealth of the other party involved. Emotional intensity means people may be inclined to trust one another based on the concept of love, as Senator O'Toole put it.

A strange thought entered my mind. Do coalition parties have pre-nuptial agreements for when they fall out of love? I suppose that is the programme for Government. However, I do not wish to be frivolous. Many speakers referred to the situation that exists before and after a marriage, especially if rancour and bitterness are involved. Lawyers will get involved at this point, as they invariably do. We never considered pre-nuptial agreements for people with small amounts of wealth; we always thought they applied to those with with great wealth. To an extent they were seen as protection against gold diggers. I am concerned at the idea of broadening the legislation to cover ordinary people with houses, good jobs and pension rights. It is not far fetched to imagine this could become part of our culture. We need to examine all the complexities if we are to endorse pre-nuptial agreements.

Issues other than wealth determine our concept of pre-nuptial agreements, one of which relates to the instability of marriage. This is particularly true in the United States where close to 60% of marriages end in divorce and some people enter second and third marriages. I do not think that culture exists here even though we have divorce legislation. We are discussing a small number of people who want to reconcile their agreements with the law, yet we may make this appear to be the norm.

The Minister is correct on the subject of setting up a specialist group, possibly headed by a person with legal experience. We are not suggesting this body will receive a definitive role, this is a preliminary discussion. There may be eminent people involved in this group and, no doubt, it will be driven, to an extent, by the media. This subject, by its nature, extends almost into the realm of fantasy and therefore opens itself to the cult of personality regarding who has entered into a pre-nuptial agreement. I am concerned that the impression might be given that we would automatically give credibility to the findings of this body. When the Minister is examining this matter he might consider the group as a stepping stone to providing us, not with a Green Paper or White Paper, but with a discussion document to allow us consider the complexities involved.

The Minister pointed out some of the contingencies that are embedded in the 1993 legislation and how the divorce legislation has broadened the concept of marriage breakdown and the acceptance by judges of the idea of the division of property in cases where a marriage fails. All of these issues are present but not necessarily used in a focused way, as might happen were we to talk in terms of recognising pre-nuptial agreements.

The tone has been set, although Senator Norris has expanded it too much for my liking because he has taken the issue into other areas, which he is entitled to do. Trying to control the racehorses after the race has begun is not always easy and most people would sound a note of warning in that regard.

Senator Browne, while not acting as devil's advocate, presented a case for debate rather than a definitive argument suggesting we must enact legislation on pre-nuptial agreements. I welcome this debate and agree with the cautious approach taken by the Minister. I hope there is unanimity on this issue while I also hope it will not be seen as something we are pre-disposed to accept. I would welcome interim reports from the aforementioned group which might tease out some of the legal complexities regarding protection of vulnerable parties, such as children.

Fergal Browne (Fine Gael)
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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.

Cyprian Brady (Fianna Fail)
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When is it proposed to sit again?

Labhrás Ó Murchú (Fianna Fail)
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At 10.30 a.m. on Thursday, 19 October 2006.