348. Deputy Seán Barrett asked the Minister for Justice and Equality his plans to introduce legislation to legalise premarital agreements; and if he will make a statement on the matter. [23736/19]
Minister for Justice and Equality (Deputy Charles Flanagan): As the Deputy will be aware, the institution of marriage is afforded constitutional protection under Article 41.3.1º of the Constitution. Under Article 41.3.2º, a court may grant a divorce only where specific conditions have been met. The Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016, which was approved by the people in a referendum on 24 May 2019, provides for the amendment of Article 41.3.2º of the Constitution to remove the minimum living apart period for spouses seeking a divorce and for the amendment of Article 41.3.3º which deals with the recognition of foreign divorces. The existing provisions in Article 41.3.2º of the Constitution which require that there be no prospect of reconciliation and that “such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any children of either or both of them and any other person prescribed by law” will continue in force in the Constitution.
Pre-nuptial agreements are related to the concept of “proper provision”. Currently, pre-nuptial agreements have no basis in law in Ireland and consequently, they are not strictly binding. However, couples are free to enter pre-nuptial agreements and such agreements can serve as guides for the court in divorce cases. If a pre-nuptial agreement makes “proper provision” for each spouse, it is more likely to be persuasive on the court.
The Law Reform Commission has included in its new Fifth Programme of Law Reform an examination of the “proper provision” requirement for divorce. The Law Reform Commission has indicated that it will “consider to what extent any further guidance may be provided in order to ensure a consistency in the approach taken to the exercise of this judicial discretion, in particular to assist spouses to reach settlements and resolve disputes more efficiently and at lower financial or cost.” The outcome of the Law Reform Commission’s examination of this issue will inform future proposals for any legislative reform in this area and I have no plans in the meantime to introduce legislation to legalise pre-nuptial agreements.