What is a prenuptial agreement?
A prenuptial agreement (also known as prenup, prenup agreement, premarital agreement, or prenuptial contract) is a legal contract used when two people, who intend to get married or enter into a civil partnership, want to sort their financial affairs in case they decide to divorce or separate in the future.
The Net Lawman prenuptial agreements have been written to make sure they are legally enforceable under Irish law. We understand that no two people have similar circumstances in the event of marital breakdown therefore Net Lawman prenuptial agreements covers a very wide range of possible outcomes and also deals with many matters to be agreed upon in your marriage. The parties can choose from these options without any undue influence.
This prenuptial agreement ensures that the parties discuss and decide on every kind of asset they own. Considering that Irish law does not recognize the concept of community property, it is extremely important to draw a distinction between separate property (owned separately) and marital property (owned jointly). Our agreements require you to list all assets for each property. These include income, properties, financial investments, pension rights, intellectual property, possessions etc. The prenuptial agreements also set out how assets and liabilities will be divided if you separate permanently or in the event of divorce.
It is important to understand that the court retains complete discretion to divide the assets in a financial
divorce settlement as it likes. Whether you create your prenuptial agreement yourself, or ask a solicitor or family law expert to do it for you, there is no guarantee that your wishes will be followed exactly.
What should a prenuptial agreement cover?
These agreements contain an inventory of your assets and liabilities and details how the couple intends to divide it in case of divorce. In order to do this, such agreements should contain;
- Date of marriage;
- Property of each spouse owned separately and jointly;
- Joint bank account;
- Sharing living expenses;
- Children arrangements after separation;
- Dealing with family home;
- Financial support of children;
- Spousal maintenance/ spousal support for the other spouse;
- Prevention of the future spouse reducing joint wealth before separation by giving away assets;
- Dealing with family company and / or jointly owned business;
- Pension
- Promise of confidentiality;
- Circumstances for the surviving spouse if one of the two should die;
- Other legal provisions to protect your interests;
- Final statement of understanding of legal requirements.
The law in these prenuptial agreements:
Family Law Act 1995 and Family Law (Divorce) Act 1996 set out what a judge should consider when dividing assets. The principles can be applied differently, and the actual outcome will very much depend on the person judging your case. However, a well written, sensible agreement is highly likely to influence a judge's decision.
Why do you need a prenuptial agreement?
You need this agreement to protect your financial assets because it primarily sets out how the assets and finances are divided if the couple divorces. It will also act as a guide for the judge for property division if the marriage breaks down as long as the judge considers the agreement to be reasonable and fair. The couple should keep in mind to reflect both their interests in the prenuptial agreement.
Who needs a prenuptial agreement?
It is commonly viewed that only wealthy people should enter into such agreements before getting married however, there are many instances where the parties should consider having a prenuptial agreement in place. One or both parties may:
- have been married before;
- have children
- has many assets and wants to protect them
- be entitled to receive large inheritances
- has a lot of debt
- want to retain control of their business
Do you need to disclose all your finances?
Yes, full financial disclosure is an important prerequisite to having your agreement enforced in the court. If you do not wish to delay the process of divorce then make sure that you disclose all your assets, liabilities and income so that it is not challenged later on.
Is a prenuptial agreement legally binding?
Prenuptial agreements are not legally binding in Ireland. This means that the agreement will not automatically be enforced by the Irish court. However, the agreement is likely to be upheld by the court if certain requirements are met. These are:
- the two people entered into the agreement before the marriage ceremony.
- the couple has considered and understood the implications of entering into such an agreement;
- the parties have given full disclosure of their financial information, property owned and any other assets in their names or further information.
- the division of assets is considered fair and reasonable.
When should you sign the prenuptial agreement?
It should be signed a reasonable time ahead of the marriage. Any time before 4 weeks of the ceremony is considered reasonable.
Should the prenuptial agreement be registered?
While there is no requirement to have the prenuptial agreement registered with any authority, it is good practice to have it attested by the commissioner of oaths. This will help you to present it as evidence in court proceedings. This can also be done at the time the court proceedings begin.
Do you need independent legal advice before entering into the prenuptial agreement?
Independent legal advice means impartial advice from a legal counsel. The law does not require both sides to have taken independent legal advice before having to sign a prenup. Independent legal advice simply strengthens the argument that you both knew what you were agreeing to, when you agreed to it. Our templates are professionally written in plain English and furthermore come with complete guidance notes.
Do you need to go through divorce proceedings after having a prenuptial agreement in place?
Yes, you will still need to go through the divorce proceedings. Having such agreements in place will help you to speed up the process but it will not help you to avoid it altogether.
Can you change anything in the agreement once it has been signed?
No, you cannot change anything in the prenuptial agreement once it has been signed. However, you can modify the prenuptial agreement by signing a postnuptial agreement. Postnuptial agreements are similar to prenuptial agreement, the only difference is it is entered into after the marriage has taken place. You can also use the variation of contract agreement to change the terms of the prenuptial agreement later on.
What happens to the agreement if the spouse dies?
These agreements don’t only contain proper provisions for property divisions but it also contains provisions to protect property if your future spouse dies, for example, the agreement can set out whether or not the surviving spouse has the right to claim the property. Do remember that the agreement does not work as a will.
Related documents in Irish family law
We stock two versions of premarital agreements. One document covers a wider range of possible outcomes and helps you define your intentions over broader areas by providing a framework that allows financial disclosure of each party. The other one is simpler version of that has been written for couples who are likely to be financially independent before the marriage or partnership and for whom the concern is about ensuring that wealth and assets remain in possession of whichever one brought them in, should the marriage fail. We expect that this document will be more suitable for older couples who have already accumulated wealth, and who perhaps are marrying for a second time and learned to have recorded specific information about their wealth rcorded from previous relationship.
People living together or cohabitating can use this cohabitation agreement. And couples who are married or civil partners or couples that are just living together but wish to separate can benefit from our separation agreement.
