Prenuptial Agreement FAQ - Ireland


A prenuptial agreement is a contract entered into by two people who are about to marry. A prenuptial agreement (often called a ‘prenup’ or ‘prenupt’) is used to specify how property and debts will be divided in the event of a breakup.
General
Should I get a prenup?

No one can tell you whether a prenuptial agreement is right for you and your situation. People can give you sound advice based on years of experience, but ultimately the decision is up to you and your future spouse. That said, you might want to consider a prenup if one or more of the following is true:

  • You own or co-own a business or businesses.
  • You may receive a large inheritance.
  • You expect to see a large increase in income.
  • One of you is much wealthier than the other.
  • One of you plans to support the other financially through post-secondary education.
  • You have or will have a license or degree in a lucrative profession.
  • You own your own practice.
  • You have valuable property, such as real estate, stocks, or savings.
  • You have parents or other loved ones who need a secure financial future.
What is discussed in a prenuptial agreement?

Usually a prenuptial agreement will discuss the following topics:

  • division and ownership of property;
  • division and ownership of debts;
  • spousal maintenance; and
  • inheritance of property.
If I create a prenuptial agreement, will I avoid litigation in the event of a divorce?

A successful prenup can help speed up litigation or possibly even avoid it altogether in the event of a divorce. However, there is no guarantee that a prenup will avoid litigation at divorce.

Are there any limitations on who can create and sign a prenuptial agreement?

No. Generally, any couple contemplating marriage can enter into a prenuptial agreement.

What should I not include in a prenup?

A prenuptial agreement cannot be used to determine issues regarding child custody, child visitation rights, or child maintenance payments. Please do not include any provisions that deal with such, as the courts will always make a decision based on the best interests of the child(ren) at the time of divorce. You should also avoid including any provisions that do not deal with property or finances. For example, you should avoid including a clause stating that your spouse must do the laundry twice a week. These types of demands not binding in court. If you wish to list personal matters, such as the division of chores, rules for raising children, etc., you should do so in a separate agreement (with the knowledge that such an agreement is not legally binding) so as not to invalidate your prenuptial agreement.

What is the difference between a prenuptial agreement and a cohabitation agreement?

A prenuptial agreement is an agreement specifically for couples who intend to get married while a cohabitation agreement is for couples (either heterosexual or same-sex) who intend to live together without getting married.

When should we sign our prenuptial agreement?

You should sign your prenuptial agreement well in advance of your marriage ceremony (it’s recommended not less than 28 days before the wedding). Should the agreement later be challenged, the court will be less likely to question whether one of the parties entered into the agreement under duress, coercion, or undue influence. Signing the document in advance ensures that both parties have had sufficient time to consider the agreement before getting married.

Should all finances be disclosed prior to entering a prenuptial agreement?

Yes, it is essential that each party discloses his/her finances to the other (including all income, assets and debts). The prenuptial agreement can be challenged in court if it later revealed that one of the parties did not disclose or hid assets at the time the agreement was created. In the interests of full disclosure, it is smart practice to attach financial statements detailing the financial situation of each party.

What requirements must be met for a prenuptial agreement to be held valid and legally enforceable?

Prenuptial Agreements are not legally binding and will not automatically be upheld or enforced by an Irish court in the event of marital breakdown. However, a judge will take your Prenuptial Agreement seriously and is likely to uphold it as long as certain safeguards have been met.

For a Prenuptial Agreement to be upheld, the following safeguards must be met:

  • The agreement was completed in direct anticipation of the marriage.
  • The agreement is intended to deal with a breakdown in the marriage.
  • Full financial disclosure by both parties was made prior to the agreement.
  • Both parties received independent legal advice at the outset.
  • The agreement states that it is intended to be legally binding.
  • The division of assets is reasonable in the circumstances and is subject to review in the event of major changes in circumstances.
  • The agreement was entered into at least 28 days before the marriage.


Party Information
What does “independent legal advice” mean?

Independent legal advice refers to each party having a different lawyer explain to them the terms of the agreement and advising them of what is in their best interests. Courts will be more willing to uphold the terms of a prenuptial agreement if it is clear that both parties had their own lawyer and understood the agreement they were entering.


Property
What is property?

Property is anything that is owned. Property is often divided into two types: "real property" which is any interest in land or real estate and "personal property" (sometimes referred to as "personalty") which includes everything else. Savings accounts, stocks and bonds, real estate, vehicles, valuable antiques – these are all examples of property.

How can I list property?

There are two ways to list both Separate Property and Shared Property:

  1. Select “Yes, as specified below”. This option allows you to list up to ten items of property per party. This option is convenient if you have not already created a list of property and each party has 10 or fewer items to claim.
  2. Select “Yes, as specified in an attached list” and attach a list of property to your prenuptial agreement. This option is best if you have already created a detailed list of property or if a party has more than 10 items to claim.
How should I list property?

When listing an item of property, your goal should be to list enough information about the item so that there is no doubt as to which item you are describing. As a general rule, the more information you provide about an item of property, the easier it will be to identify in the future. The following are suggestions for listing different types of property.

  • Vehicles
Year, Make, Model, Vehicle Identification Number (VIN). VIN is optional, but recommended.
Example: 2006 Hyundai Tucson, 111…
  • Real Estate Property
Type of property, address (Street Address, City, County, Eircode).
Example: Townhouse, 111 Orchard Way, Dublin 13, Dublin, Ireland, D13 EE97
  • Accounts, Funds, etc.
Type of account, institution, account number.
Example: Savings Account, XYZ Bank, 111…
  • Possessions
List enough information so that there will be no questions as to which item you are describing. When listing a collection, name at least the most important items in the collection. If you have an art collection with over 100 pieces, it might be difficult and/or impractical to list them all. However, you should include the description of all pieces that are particularly valuable or meaningful to you.
Examples:
Diamond earrings from ABC Jewelers, 0.5 ct.
Bedroom furniture, including: king sized bed, king sized mattress, two night tables, and two lamps.
Art collection, including: “Sunset”, original painting by Artist X; “Apples”, print by Artist Y; all other paintings, prints, and sculptures.
How should I title my lists?

You should title each list as a schedule. For instance, if your first list is a description of all your assets, you may want to title the list as "Schedule A" and underneath this heading provide the subheading "Summary of Assets".

What is Separate Property?

Separate property is property that will not be divided between the parties in the event of a breakup. In other words, there will be no question as to the legal ownership of the property or whether the other party has any entitlement to it.

What is Shared Property?

Shared property is property that the two parties have either purchased together or have agreed to consider as belonging to both parties.

How should Shared Property be assessed in the event of a separation?

There are many different ways that Shared Property can be assessed in the event of a separation. LawDepot’s prenuptial agreement allows you to select the two most common ways of assessing Shared Property or create your own.

The two common answers you can select are “Each party will own 50% of the property” and “Ownership will be based on the financial contribution of each party”.

To create your own clause, select “Other” and enter your preferred method for assessing Shared Property in a complete sentence or paragraph. The following is an example of the kind of clause you could create: “Alex will own 80% of the art collection. Mary will own for 20% of the art collection. Each party will own 50% of all other Shared Property.”


Debts
What are Debts?

Debts are typically obligations to pay money.

How can I list Shared Debts?

There are two ways to list Shared Debts:

  1. Select “Yes, as specified below”. This option allows you to list up to ten items of shared debt. This option is convenient if you have not already created a list of shared debt and the parties have 10 or fewer items.
  2. Select “Yes, as specified in an attached list” and attach a list of shared debts to your prenuptial agreement. This option is best if you have already created a detailed list of shared debts or if the parties have more than 10 items.
How should I title my lists?

You should title each list as a schedule. For instance, if your first list is a description of all your debts, you may want to title the list as "Schedule A" and underneath this heading provide the subheading "Summary of Debts".

What are Separate Debts?

Separate debts are debts that fall upon the responsibility of one party and thus are not divided in the event of a breakup. Responsibility for the payment of a separate debt will be solely on the party who has either incurred the debt or agreed to take responsibility for the debt.

What are Shared Debts?

Shared Debts are debts that both parties are responsible for. Shared Debts will be divided in the event of a breakup. Responsibility for the repayment of a Shared Debt will fall on both parties, although not always in an equal amount. The amount that each party must contribute to the repayment of a shared debt depends on how shared debts are assessed in the event of a breakup.

How should Shared Debts be assessed in the event of a separation?

There are many different ways that Shared Debts can be assessed in the event of a breakup. LawDepot’s prenuptial agreement allows you to select the two most common ways of assessing debts or create your own. The two common answers you can select are “Each party will be responsible for 50% of the debt” and “Responsibility will be based on the financial contribution of each party”.

To create your own clause, select “Other” and enter your preferred method for assessing debt in a complete sentence or paragraph. The following is an example of the kind of clause you could create: “Alex will be responsible for 75% of all Shared Debts related to renovation costs. Mary will be responsible for 25% of all Shared Debts related to renovation costs. Each party will be responsible for 50% of all Shared Debts that are not related to renovation costs.”


Children
What are Dependent Children?

Parents have a legal responsibility to maintain dependent children. A child is dependent if they are under the age of 18, or 23 if they are in full-time education. If the child is over 18 and under 23 and the financial circumstances do not allow them to attend further education, maintenance can be applied for in order to facilitate further education.

If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain themselves fully, then there is no age limit for seeking maintenance for their support. Each party must disclose their finances to a court which will ultimately consider all of the family�s circumstances when making a maintenance order.


Maintenance
Can a party be entitled to more than one type of maintenance?

Yes, a party can be entitled to more than one type of maintenance. For example, your prenup could dictate that, in the event of a divorce, your future spouse will receive a lump sum payment as well as fixed monthly payments.

What is a Lump Sum Payment?

A lump sum payment is a one-time payment of money, as opposed to a series of recurring payments.


Additional Clauses
What are Additional Clauses?

The Additional Clauses feature allows you to add your own clauses to cover any issues that LawDepot’s standard prenuptial agreement does not cover. When writing your own clause, be clear and concise, and write it in a complete sentence or paragraph. Avoid creating clauses that do not deal with property or finances. For example, you should avoid including a clause stating that your spouse must do the laundry twice a week. Not only are these types of demands not binding in court, they might even cause a judge to revoke the entire agreement.


Other
Can I restrict or waive child maintenance in a prenuptial agreement?

Generally, you can not adversely affect or waive any rights of a child to maintenance in a prenuptial agreement. The parties can set their intentions in the prenuptial agreement which the courts can consider, but they are not bound by such provisions as the needs of the children are paramount.

Do I need to file my prenuptial agreement anywhere?

No, you do not need to file your prenuptial agreement anywhere. Just make sure that you keep a signed copy or copies in a safe, secure place.


 

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