Cover story
Pre-nuptial agreements
ND TO HOLD? relatively rare occurrence in Ireland. It is most likely to be found in relationships characterised by one or more of the following: people entering a second marriage seeking protection for properties they had before they wed; a significant asset imbalance between the parties; a foreign national marrying an Irish person who will want to protect properties owned in his or her home country should the marriage break down; and the presence of a family business that one spouse wishes to protect. You can’t always get what you want In the past, where a pre-nuptial contract was executed prior to a marriage with a view to regulating the contingency of a future separation, such a contract was held to be void on the grounds of public policy since there should be no inducement to leave a marriage. One of the earliest authorities against the enforceability of pre-nuptial agreements was the case of Brodie v Brodie ([1917] volume 33 TLR 525). In this case, the parties executed a prenuptial agreement to live apart and subsequently on the marriage executed a postnuptial agreement, confirming the provisions in the pre-nuptial contract. The court held the agreements to be void in that they were drafted to facilitate a future separation. It further held that the two agreements were one and the same and were contrary to public policy. In the case of Wilson v Carnley (24 TLR 227 [1908] 1 KB 729 CA), we find one of the clearest examples of judicial pronouncements against the enforceability of pre-nuptial agreements on public policy grounds. Kennedy LJ opined as follows: ‘No court has ever yet held that a deed providing in futuro for the contingency of separation between husband and wife is in accordance with public policy’. These cases would appear to be the main early authorities on marital agreements. The removal of the constitutional prohibition on divorce weakens, but does not negative, the argument that a contract made in contemplation of a
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