Pre-nuptial agreements: time for clarity?

The Minister for Justice has announced the membership of Pre-nuptial Study Group, whose terms of reference will be

to study and report on the operation of the law since the introduction of divorce in 1996 with respect to pre-nuptial agreements taking into account constitutional requirements.

Quite frankly, the law in this area is seriously in need of reform. It has always seemed to me that McMahon v McMahon [1913] 1 IR 428 precluded the enforceability of pre-nuptial agreements as a matter of Irish law, and despite the amendement of the Constitution to provide for the introduction of divorce, with the consequent weakening of the policy basis upon which McMahon was constructed, Ennis v Butterly [1996] IEHC 51; [1996] 1 IR 426; [1997] 1 ILRM 28 seemed to me to continue the McMahon view of the law.

Responding to a motion put down by Fine Gael Senator Fergal Browne calling for the matter to be referred to the Law Reform Commission, the Minister told the Seanad (Senate) earlier this year (Seanad Report | Irish Times | Irish Independent) that the removal of the constitutional prohibition on divorce in Ireland has weakened the public policy against pre-nuptial agreements. Today’s announcement of the Study Group fulfils a promise he made that day. Of course, as David Hegarty SC points out, such agreements are not without some value even as the law stands (Irish Times | amen). But as pre-nuptial agreements become more and more popular, doubts nevertheless persist (Irish Independent | Irish Times | Law Society Gazette (Geoffrey Shannon)), and for some (like John Waters in the Irish Times), resolving those doubts cannot come quickly enough.

Finally, on a professional level, I am pleased that the Group will have significant academic input, as its membership includes Louise Crowley (UCC), who has written widely about family law (including ‘Pre-Nuptial Agreements – Have they any place in Irish law?’ [2001] 4 I.J.F.L. 3) and Ross Aylward BL, whose recent book Pre-Nuptial Agreements (RoundHall Thomson, Dublin, 2006) is based on his TCD thesis.