Did you know that 75% of farmers are in favour of pre-nuptial agreements?
Justice Minister, Frances Fitzgerald recently met with farming groups who had expressed concern over the transfer of land to the next generation over worries of farms being split up and sold off in the event of a son or daughters divorce.
She has indicated she is to review the area surrounding pre-nuptial agreements.
Many farmers are reluctant to transfer the farm to their son or daughter for fear that it might form part of the pot of assets “up for grabs” in the event of a marriage breakdown.
Farms that have been in families for generations could form part of a divorce settlement.
Land in rural Ireland means more than just a livelihood to most people.
It forms part of their identity, history and values.
People are living longer and very often the parents are working on the farm well past retirement.
The parents’ family home is also often located on the farm.
I suspect that many people feel guilty if they even think about getting a pre-nup.
In historical terms marriage had more to do with family ties and the amalgamation of wealth, more so than the feeling of love.
First and foremost, marriage was a financial contract.
Nowadays in this part of the world we tend to forget that marriage is a contract and we focus on love, fuzzy feelings and romance.
Marriage is ring fenced in laws as old as time. For many centuries many husbands owned their wives as property.
A married woman could not possess property in her own right until comparatively recently in legal terms, so whatever she had was her husband’s.
Of course she also did not have the right to vote or divorce.
These laws, have of course been updated, but not without some bloodshed.
Ireland was relatively late in legislating for divorce so we learned and can learn from the mistakes of practically every country in the Western hemisphere.
Many will be surprised that pre-nuptial agreements are not already legally enforceable in Ireland, even if they have been agreed by both parties.
While your marriage is a contract, it is a contract with the State, not your partner.
It is not fair to have a situation where family farms, that took generations to build and assemble, and of which all the members have a huge emotional stake can be left in any kind of legal limbo, and formal recognition of freely entered pre-nuptial agreements would certainly help to avoid that.
While not recognised in Ireland at present entering into a pre-nuptial agreement now is still worth considering.
To ensure pre-nuptial agreements are taken into account by a judge in the event of a family breakdown they are certain elements that must be put in place.
They must be in writing.
They must be signed and witnessed no less than 28 days in advance of the wedding. Both parties must be independently advised.
There must be full and frank disclosure of all assets and liabilities from both sides in advance of signing and there must be no duress on either party to sign.
Any agreement should also be reviewed periodically especially after the couple have children.
The paramount advice to a client would be to speak with their partner, be honest with him or her as to why they wish to enter into such an agreement.
They should relay their concerns and reasons for feeling they need to enter into a Pre-Nuptial Agreement to their partner.
The couple should agree the terms of the agreement between themselves in consultation with their solicitors and have a full and frank discussion between themselves.
Neither party should feel pressurised into signing the agreement.
Parents and parents-in-law should not become involved otherwise it may be viewed that either or both parties to the agreement may have been pressurised into signing the agreement.
As we tend to marry later in life than previous generations most of us have business assets and property entering into marriage and as the divorce jurisdiction gets older more of us are marrying for the second and third time, so basically quite a few of us need to give the idea of a pre-nup some serious consideration.