My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Thursday, June 9, 2011
“I Do……provided always ….on certain terms and conditions…” Prenuptial Agreements
In historical terms, marriage had to do with family ties and consolidation of wealth. The contract element of marriage was to the fore. These elements are still there with more or less emphasis in different parts of the world. However, now, in the West we tend to forget that marriage is first and foremost a contract and one which is ring-fenced with laws as old as time and we focus on love. For many centuries husbands owned their wives as property as they did their children. A married woman could not possess property in her own right until comparatively recently in legal terms so that whatever she had was her husbands. Of course, she also did not have the vote or the right to divorce and so she was rightly ….”packaged” as they say. These laws have, of course, been updated, not without some bloodshed, but marriage is still a contract. Some of us only seem to reflect on the property aspects of marriage when we are separating or getting a divorce and only then with a huge tinge of bitterness. 50% of all first marriages in the US end in divorce and the number rises significantly for 2nd and 3rd marriages. Even though our marriage breakdown rate is relatively low by comparison to the US or even that of our nearest neighbour, we would not want to get smug. We have the leisure in Ireland of the “benefit of hindsight”. Because we were so late in coming to divorce, we can learn from the mistakes of practically everyone else in the Western hemisphere. We should not miss the opportunity.
At present, our legal position is that prenuptial agreements are not illegal nor do they have legal backing. The possibility of such agreements is envisaged in our family law legislation with the proviso that the court can vary them if it wishes and has a wide discretion. Should we leave well enough alone? There are very good arguments in favour of prenuptial agreements or pre-marriage contracts and I believe that we should take a fresh look at them and allow them to have legal backing on certain well defined terms and conditions.
We all agree that couples should be as honest as possible with each other before they marry. We all agree that couples need to discuss the hard questions with each other before they marry and share a common set of life goals, for example, how important are careers and money to us, do we want children, how would we like to raise them, will we both work once we have a family, how will we share finances, how will we interact with each other’s relations, family and friends, how important is time apart for each of us and so forth. There are many very important things that couples need to discuss from the standpoint of their educational and cultural backgrounds. We encourage couples to do pre-marriage courses precisely because we know how important it is that these questions get discussed and resolved or not, as the case may be, before the marriage. Yet in very many cases, they do not get discussed as is obvious to me in my job and worse than that, many people think it is unromantic to discuss things like money and property before a marriage. Yet we know that people have money personalities. Some like to spend, some like to gamble, some like to save, some exercise judicial spending and some like to budget and so on and on. Can any of us put our hands on our hearts and say that couples do not fight over money? Can any of us say that many couples do not profoundly disagree on how money is to be spent in their marriage and can any of us say that many a marriage has floundered when money shortages occurred? So we know that money is important and that for a marriage to work people need to have an understanding about money. A prenuptial agreement can help a couple begin their marriage preparation with an honest disclosure of their respective financial positions making each fully aware of each other’s circumstances. Such discussions will also lead to a crucial understanding of their respective attitudes to money.
Who should consider a prenuptial agreement? Those who are going into a second marriage should certainly consider a prenup since quite often they are bringing property into the marriage that was acquired previously or there are children from a previous marriage. People who are marrying for the first time but have children from a previous relationship, people who are marrying for the first time but one or both of whom has property or business interests and people of inherited wealth or property or those likely to inherit significant wealth. In the case of the aforementioned farmers many of them would have inherited family farms which had passed down through their families for generations only to see them being broken up as a result of a separation or divorce. As a result many farmers are not passing on the farms to their young sons for fear that the son’s marriage may not stand the test of time. This is not in anyone’s interests since we need fresh thinking in all areas of life. A prenuptial agreement is a contract signed by a couple before the wedding detailing what their property rights and expectations are upon divorce or death. Since marriage is a contract in and of itself there is nothing inherently anti- romantic in entering into a premarriage contract and since we all agree that discussions about money and property are a necessary part of foreplay so to speak, then what can be wrong with detailing those items and out expectations. As we tend to marry later in life than previous generations more of us have businesses and property entering into the marriage, and as our divorce jurisdiction gets older more of us are marrying for 2nd and 3rd times, so basically quite a few of us need to give the idea of a prenup serious consideration.
Recently, Prince William decided against a prenuptial agreement before his marriage to Kate Middleton. How much consideration he gave to it, I don’t know but a lot of headlines praised him for putting romance and love first which is quite simply wrong headed in my view. When Crown Princess Victoria of Sweden married Dan Westling, a fitness instructor, agreements were drawn up to define how wealth should be divided should they separate. Lawyers acting for the Princess ensured that all property, inheritance and gifts belonging to the royal household remained in her name. And does anyone really think it should be otherwise? I doubt it. Still we tend to associate prenups with the rich and famous and I suppose the examples I am using here are not helping but those are the prenups we hear about in the papers. Prenuptial Agreements have been popular in Hollywood for many years and in the US somewhat less so but they have not tended to be part of British law and still less of Irish law. That changed last October when Katrin Redmacher, a German heiress, succeeded in changing the face of marriage law in England when her prenuptial agreement protecting her inheritance was upheld by the court. And what is in England today tends to be in Ireland tomorrow. In the EU, Ireland and Britain are the only countries without legislation on prenuptial agreements. In Ireland, we have, in fact, already moved towards private ordering in Irish family law by the introduction of co-habitation agreements. Such private agreements will be enforceable subject to certain formalities and as things currently stand there are no comparable provisions for married couples. However, it must be obvious that it is only a matter of time.
There is no doubt that prenups have an uneasy place in society. Robert Brown, a British Airways pilot killed his wealthy wife because he thought he had been stitched up in the prenup. He quite literally hit her over the head with a mallet. So what needs to happen to ensure that brides who want a prenup are not courting death at a later stage and that the agreement will be enforced? Well in Ireland we should enact legislation for starters and such legislation should provide that couples should each have their own lawyer and there should be a full disclosure of assets on both sides. In addition, both parties need to have plenty of time to consider the terms before signing. If an agreement is signed too proximate to the wedding it could lend itself to a claim of coercion later.
Prenuptial agreements can be extremely detailed. We tend to think of them only in terms of property coming into the marriage which was acquired before the marriage but they can also make provision for money being set aside for college education in respect of either of the spouses or children and this might prove very important if, for example, one spouse had helped financially to put the other through college in the early days of the marriage. An agreement could also make provision to set up trusts for minor children.
The Irish Farmers Association has outlined a draft prenup which seeks to protect the family farm and prevent it being broken up into unviable smaller holdings. I think our Government has a vested interest in this as well both historically and in modern economic terms. They suggest that any new assets acquired during the marriage or improvements and/or additions to the farm would be divided. This is grand in theory but as a family lawyer, I can assure you that many a great battle was fought over whether something was or was not an improvement. Anyway, something has to be left to the lawyers, you can’t have people agreeing everything themselves, where would we be?