When will Ireland legislate for prenup agreements?

As long ago as 2006 the Law Reform Commission recommended that Ireland give prenuptial agreements full statutory power. Why has this still not happened in the legal contract that is marriage, and when will an Irish government stop keeping Ireland as "an outlier in Europe" (backward) on yet another aspect of Irish family law?

https://www.irishlegal.com/articles/ireland-an-outlier-in-europe-over-prenups

https://www.thejournal.ie/readme/prenuptial-agreement-ireland-1685827-Sep2014/

CIARAN_BOYLE

https://www.boards.ie/discussion/2058302412/when-will-ireland-legislate-for-prenup-agreements

Theres some question as to whether the government can legislate for prenups.

The protection for the institute of marriage may result in people being unable to enter marriage with plans for dissolving the marriage.

There may need to be a referendum first. Maybe not though but imo any legislation would be shaky and vulnerable to being challenged.

Peregrinus

The issue is that, under the Constitution, a court can only grant a divorce if (among other things) it is satisfied that "such provision as the Court considers proper" has been made for the spouses and the children. This means that the court, rather than the couple, must be the final arbiter of the financial and property settlement on divorce.

So a lot depends on what the OP means by "full statutory recognition" of prenuptial agreements. If this means that a prenuptial agreement is to be binding on the couple, and on the court, a constitutional amendment would be necessary before legislation to that effect could be enacted. On the other hand, if it simply means that the law will identify prenuptial agreements as a factor that the court must take into account in considering what provision is proper to be made, that could be done without a referendum.

So, to answer the question raised in the thread title, Ireland won't "legislate for prenup agreements" until (a) we have first decided exactly what we want the law to say about them, and (b) depending on what that decision is, any necessary constitutional amendment has been approved by the people.

For what it's worth, I don't think there are many (if any?) countries that make prenuptial agreements automatically and fully enforceable. Just as you can't contract out of certain aspects of consumer law or tenancy law or employment law or whatever, in every country there are certain aspects of the status of marriage that you can't contract out of. Even in countries where prenuptial agreements are permitted and are common, there's a distinction between the provisions that you can validly include in a prenuptial agreement and the provisions that you can't. The courts will simply ignore provisions invalidly included. So you need a lawyer well-versed in the intricacies of the area to draw up your prenuptial agreement.

Which means in the Irish context there's another question we need to consider; what exactly do we think prenuptial agreements are for? What should you be able to deal with in a prenuptial agreement, and what should you not?

On edit: I'm open to correction, but I think the statement in the OP that "the Law Reform Commission recommended that Ireland give prenuptial agreements full statutory power" may not be correct. In the first place, the only relevant report from 2006 that I can find is not from the LRC (which so far as I know has not reported on this matter at all) but from a Study Group established by the then Minister for Justice. (Why he set up a study group rather than referring the matter to the LRC I do not know, but he did.) More to the point, the Study Group didn't recommend that prenuptial agreements should be given "full statutory power"; it recommended an amendment to the Family Law (Divorce) Act to provide that, before making financial and property adjustment orders on divorce, a court should "have regard to" the terms of any pre-nuptial agreement the spouses might have made. This would be just one of a long list of thing that the court must have regard to. The court's power to make whatever order it thought proper in the interests of justice would be unaffected.

novemberbass

Is it possible to get a prenup drawn up and for it to be legally binding if signed by both parties before entering into marriage? If both parties are against the idea of having children and the prenup is there as just that little bit of extra security should things fall apart and one party changes personality all of a sudden and decides they want to milk the other for half their assets, is it possible to have anything in writing to protect each party in such a case?

iniscealtra

Prenup has no legal standing in Ireland as far as I know.