Prenuptial agreements in Ireland – balancing fairness and autonomy

For a variety of policy reasons, prenuptial agreements are generally not currently recognized in Irish law. Limited legislative recognition of prenuptial agreements was proposed in 2007, but this has not been enacted. However, it appears the proposal is currently being revisited. A key assumption of the 2007 proposal was that that some of the policy concerns articulated in the literature on prenuptial agreements (such as gender equity and the protection of vulnerable spouses) would be of less concern in Ireland, due to the overriding constitutional requirement that “proper” provision must be made for spouses and children on divorce. This paper queries the extent to which this assumption still holds, in light of a number of recent decisions placing greater emphasis on autonomy and finality in the context of financial provision on marital breakdown. In particular, the paper highlights a further concern arising from the new emphasis on respecting autonomy. This is the very limited conceptualization of autonomy espoused to date by Irish courts in the context of spousal agreements, which, it is contended, has the potential to undermine further the constitutional standard for provision. The paper queries whether the 2007 proposal is adequate to deal with this concern, and draws on comparative analysis and relational theory to suggest how Irish law in this area might usefully be developed.

About the speaker

Dr Lucy-Ann Buckley has lectured in Law at NUI Galway since 1999, having previously lectured at the University of Warwick and the University of Limerick. She is a graduate of University College Cork (BCL, LLM), the University of Oxford (BCL); and Trinity College Dublin (PhD). She is also a qualified solicitor. She has published widely on family law, labour law and equality issues (particularly gender equality), and has a special interest in socio-legal work. Particular research interests to date include the law of sexual harassment, and financial provision on marital breakdown in Ireland. Her current research focuses on gender equality issues in legal approaches to autonomy, particularly in the family context. She is especially interested in the legal recognition of caring work and contributions to family life, and in the effects of caring roles on employment participation and gender equality. At NUI Galway, Dr Buckley is a member of the Gender and Public Policy Cluster at the Whitaker Institute and an affiliate member of the Centre for Disability Law and Policy. She is also a member of the Northern/Irish Feminist Judgments Project, a multi-disciplinary project based in the Universities of Durham and Kent and the London School of Economics, which aims to rewrite key Irish legal judgments from a feminist perspective.