The Government is set to propose new legislation to recognise prenuptial agreements, the Irish Times has 
reported.
As yet, there is no date for publication of the proposals, but it is understood that the heads of the Bill are in preparation.
The proposals will follow a report commissioned in 2007 by the then minister for justice, Michael McDowell which said that prenuptial agreements should be used as a guide when a court is deciding on division of assets in a marriage break-up, subject to conditions. Pre-nuptial agreements are not currently recognised by the Irish courts.
The report, carried out by a study group chaired by senior counsel Inge Clissman, also makes recommendations on the formalities necessary for the proper making of prenuptial agreements.
But judges should also be allowed to take into account any changes in a married couple’s material circumstances where a prenuptial agreement exists, it adds.
Prenuptial agreements have no legal basis in Irish law and are not legally enforceable. However, they have been resorted to more and more by Irish married couples following the introduction of divorce in 1996.
The High Court and Supreme Court have not yet ruled definitively on the status of such agreements in law. In the past, the courts have refused to enforce prenuptial agreements on the basis that they were void for reasons of public policy, in that they undermined marriage.
However, the study group which presented the report argue that the introduction of divorce has undermined this public policy objection to this form of agreement.
The group recommends new sections be introduced to the Family Law Act 1995 and the Family Law (Divorce) Act 1996 to provide for prenuptial agreements. The report also recommends that prenuptial agreements be reviewable on death. It adds that it runs contrary to succession law to allow interference with the freedom of testation on broad discretionary grounds.
Banning prenuptial agreements on the basis that the common good is harmed by them would be deemed unconstitutional, according to the report.
The term “prenuptial agreement” should be defined in legislation, the report adds. Such agreements should be in writing, signed and witnessed, after each party has had legal advice and made a financial disclosure.
A 2007 poll by Macra na Feirme, an organisation representing young farmers, has revealed that a 80 per cent of respondents believe that prenuptial agreements should be recognised in Ireland.
Under both UK and Irish family law the combined assets of the couple are divided, though not necessarily on a 50/50 basis, when a marriage breaks down.
Last week the UK’s Supreme Court ruled that prenuptial agreements should have “decisive weight” in English divorce cases. Prenuptial agreements are typically entered into when one party has considerable assets which he or she wishes to preserve in the event of a marriage break-up.
The UK supreme court case concerned a wealthy German heiress, Katrin Radmacher, possessor of an estimated fortune of £100 million (€112 million), and her French banker husband Nicolas Granatino, who signed a prenuptial agreement when they married in 1998.
The couple had two children. In the agreement he agreed to make no claims on her fortune if the marriage failed, which it did. They separated in 2006 and divorced in Britain. The settlement awarded him £1 million and the use of a home worth £2.5 million until his youngest daughter is 22.
Lord Phillips also stated that courts would still have the discretion to waive prenuptial agreements if they are not fair or do not provide for the needs of the children of a marriage.
However, the growing trend of recognising pre-nuptial agreements was criticised by a leading Church of England bishop, who said that it risked “cheapening” marriage.
The Bishop of Blackburn, Rt Rev Nicholas Reade, said sacred commitments between husband and wife were being reduced to little more than “balance sheets”.
He warned that the rise in “pre-nups”, while good news for lawyers, risked putting a price on the failure of a couple’s love.
Speaking in a House of Lords debate, Bishop Reade condemned the growing trend for contracts which set out the limits of divorce settlements before couples have even married.
“Such settlements, no doubt much loved by legal and financial professionals who profit from them, are in danger of reducing marriage to the economic bargaining of historic marriage contracts and of cheapening sacred commitments into balance sheets,” he said.
“In a Christian understanding of marriage such prenuptials weaken and dilute our marriage vows of lifelong commitment, where sacrificial love forms the bedrock and the core.
“These commitments, made before God and all those attending a Christian wedding service, look confidently towards a new, positive and progressive relationship in the unfolding history of human love.
“There is no suggestion here of an economic breakdown kit, poised for use if dreams fade or demands surmount expectations.”
He said celebrity divorce cases had valued the “failure” of love at between £7.5 million and £75 million.