Introduction
Prenuptial agreements have traditionally been considered void in Ireland, as they were regarded as encouraging marital breakdown.Footnote 1 Although this argument is weaker following the removal of the constitutional prohibition on divorce, other policy concerns remain, particularly in relation to the balance to be drawn between autonomy and fairness, and the gender impact of upholding agreements.Footnote 2 These concerns were addressed by a ministerial Study Group in 2007,Footnote 3 which recommended limited legislative recognition of prenuptial agreements in the light of social and economic changes.Footnote 4 However, the Study Group's recommendations were never implemented, notwithstanding sustained media and lobby group pressure.Footnote 5 Although legislative action seemed imminent in 2015,Footnote 6 this now seems less likely, apparently on policy grounds.Footnote 7 However, the pressure to legislate has not abated.Footnote 8
The Study Group's recommendations were broadly similar to the recent recommendations of the Law Commission for England and Wales.Footnote 9 The national contexts are somewhat different, primarily due to Irish constitutional requirements and the judicial recognition of prenuptial agreements in England and Wales in Radmacher v Granatino,Footnote 10 but also for demographic and social reasons.Footnote 11 However, there are also strong similarities between the two jurisdictions in terms of their legislative approaches to financial provision on divorce: both operate a discretionary system, involving the application of a broad fairness-type standard, based on the consideration of similar factors.Footnote 12 These similarities suggest that the Study Group's recommendations, though now dated, may be regarded as complying with international ‘best practice’ – or at least, that they are unlikely to be bettered, should the Irish legislature eventually choose to act.
In this context of sustained lobbying and parallel developments, it is opportune to review the Study Group's proposals in more detail than they have received to date. Accordingly, this paper addresses five key questions. First, how does the Study Group seek to balance autonomy and fairness in the prenuptial agreement context? Secondly, in addressing this balance, how does the Study Group conceptualise autonomy? Thirdly, what core assumptions does the Study Group make? Fourthly, are these core assumptions still valid? Fifthly, if the core assumptions are no longer (fully) valid, are there ways to address any concerns?
In addressing these questions, the paper particularly draws on relational autonomy theory. The enforcement of marital agreements is commonly justified by the need to respect autonomy,Footnote 13 yet the exact meaning of this has not yet been properly analysed in relation to family property agreements in Ireland. Rather, the Irish courts have, in this context, tacitly accepted liberal conceptualisations of autonomy and contractual bargaining, which may lead to injustice. This has significant implications for the enforcement of prenuptial agreements. The paper therefore explores whether these concerns might be ameliorated through the adoption of a more relational approach. In discussing how this issue might usefully be addressed, the paper speaks to the broader debate on family autonomy, and draws on comparative perspectives, including the recommendations of the Law Commission for England and Wales, and the Canadian experience.
The first section of the paper briefly outlines some key issues in the autonomy debate, with particular reference to liberal and relational theorisations. The second section outlines the Irish legal context for the enforcement of family property agreements in the marital breakdown context, and highlights relevant aspects of the constitutional background, statutory position and case-law to date.Footnote 14 The third section outlines the key proposals of the Study Group, and compares these with the proposals of the Law Commission for England and Wales. It then discusses and evaluates the underlying assumptions of the Study Group, particularly, but not exclusively, from a relational perspective. The fourth section focuses on strengthening the Study Group's proposals, in the light of the issues raised; some of the suggestions may also apply to the Law Commission's proposals. The paper concludes that the Study Group's proposals could be considerably enhanced through mechanisms that would promote a more relational approach to autonomy concerns and buttress provision requirements in relation to meeting family needs.
1. Conceptions of autonomy: liberal and relational perspectives
In classical liberal theory, individuals are seen as rational and atomistic actors, who make agreements based on considerations of personal utility. Enforcing agreements therefore not only respects personal decision making, but enhances overall efficiency, since (in the absence of duress or undue influence) individuals would not agree to bargains that they did not regard as personally beneficial. Accordingly, state intervention with personal bargains should be minimised. These views are taken further by neoliberalism, which emphasises the role of the individual as a responsible citizen-actor. Stressing the individual's duty to make responsible, self-reliant choices, neoliberalism effectively assigns accountability for disadvantageous bargains to the poor choice of the affected party. Again, the individual is perceived as rational, informed and emotionally disengaged, able to make considered choices based on personal utility, and morally culpable for failing to do so.Footnote 15
These views have been strongly challenged by relational theorists, including many feminists, who have highlighted the effects of economic inequalities, socialised gender roles, race, class, cultural location and connection on the development of personal preferences and bargaining capacities.Footnote 16 The actor is conceived as embedded in his or her cultural, social, economic and familial role, with a wide range of considerations, including emotions and relational connections, which may influence personal choices.Footnote 17 Feminists have also highlighted the significance of gender in personal decision making: women generally earn less and are excluded from the labour market for long periods, or have their earning capacity reduced, because of their social role as caregivers.Footnote 18 This affects their ability to bargain. Accordingly, ascribing poor economic decisions to ‘personal choice’ ignores the gendered nature of the bargaining context, and the impact of economic and social power disparities, as well as the pressures that may derive from other relational contexts. In this view, liberalism and neoliberalism screen out the effects of structural conditions, and help to maintain and foster a context of gender disadvantage.Footnote 19
The effects of social, cultural and economic context on bargaining capacities are wide-ranging, particularly in the family context. For instance, a Muslim woman might come under community or family pressure to permit financial claims on divorce or succession to be finalised under Sharia norms.Footnote 20 Family pressure may also be brought to bear in the prenuptial context: for example, in Ireland, there is anecdotal evidence of parental reluctance to transfer the family farm to a child without a prenuptial agreement.Footnote 21 In the event of marital breakdown, a parent might feel obliged to pay over the odds in the interests of child welfare or to maintain a family connection – or indeed, might accept a low offer to maintain smooth family relationships. Other commonly relevant factors include a history of domestic violence, significant economic disparities (for instance, where one party is bargaining from a position of urgent economic need), and the different emotional pressures or vulnerabilities that might arise in the prenuptial or marital breakdown contexts.Footnote 22 On marital breakdown, the parties may experience child welfare concerns or extreme personal distress, anger or bitterness arising from the end of the relationship. In the prenuptial context, pressures might include external family pressures, requests to demonstrate disinterested affection, or fear that a wedding might be cancelled. Intending spouses may also be unduly optimistic in their expectations of marriage duration, or may assume that agreements will never be enforced in practice.Footnote 23 Additionally, since many couples now cohabit and may have children before marriage, relational pressures arising from patterns of abuse, economic disparities and concern for children may also arise at the premarital stage.
Although relational theory highlights these contextual factors, it does not consider them to preclude autonomous decision making.Footnote 24 Rather, it emphasises that autonomy is far more nuanced and complex than liberal and neoliberal theories presume.Footnote 25 Decision making is not necessarily self-interested or atomistic, and may be influenced by context, personal connections and interdependencies, though not necessarily in a negative way. Individuals may have non-economic priorities, and may opt to forgo material gain for this reason. Relational theory respects such decisions, and does not suggest that either emotion or the application of emotional pressure, as such, necessarily precludes autonomy.Footnote 26 The question is whether such pressures, connections and power imbalances impact on the individual to such an extent as to undermine significantly the quality and freedom of personal decision making.Footnote 27 This is not always a question of being completely autonomous or non-autonomous; like capacity,Footnote 28 autonomy is often a matter of degree and context, since the level of autonomy the individual exerts may vary with the issue and the parties. Nor does relational theory necessarily require that agreements should be entirely void or voidable, as under traditional legal doctrines such as duress or undue influence,Footnote 29 although it may certainly be used to broaden the understanding and operation of traditional doctrines.Footnote 30 Many legislative systems do not accord decisive weight to spousal agreements, but simply specify that courts should have regard to them when making financial orders. In the marital breakdown context, therefore, it may be possible simply to reduce the weight accorded to a questionable agreement, rather than according it decisive weight or setting it completely aside. Such ‘discounting’ may be considered appropriate where one spouse was effectively exploited or pressured into signing an unfair bargain, or lacked any real choice in terms of how he or she responded to a particular situation.
Relational theory also highlights the relevance of timeframing. Liberal theory assumes that respect for autonomy means upholding the parties’ agreement, but at what point, and in what form, is this agreement to be assessed? Marriage is a continuing relationship, where family roles, responsibilities and expectations may change and be reformulated over time, as circumstances change. It is not always possible to anticipate such changes: hence, many jurisdictions have developed doctrines on significant changes in circumstances. However, where there are no significant unexpected circumstances, but the parties have in effect gradually modified their agreement and expectations (often over many years, through their conduct or by informal agreement), the courts may be powerless to intervene. Ideally, a regular review process would lead to such modifications being recorded in a revised documentary agreement, but this may not often happen in practice. From a relational perspective, therefore, respect for autonomy should not simply mean upholding a formal written agreement, which may reflect only the parties’ expectations at a specific moment in time, but should include a consideration of the lived reality of their relationship.Footnote 31 Again, an element of discounting may be appropriate where the parties have clearly mutually modified their original expectations.
Overall, relational theory suggests a more thorough and detailed scrutiny of agreements where it appears that significant relational or contextual pressures may have undermined the real degree of choice exerted by either party. However, it also suggests that agreements based on genuine and constructive relational concerns (such as a desire to maintain a relationship) should be respected, even where they are disadvantageous.Footnote 32 It also suggests that courts should view an agreement in the context of the whole relationship, and take account of changing roles and expectations.
2. The context for prenuptial agreements in Ireland
(a) Social context
Until recently, Ireland was a very homogenous and conservative society. Divorce was constitutionally prohibited until 1995, and Ireland still has a relatively low incidence of marital breakdown.Footnote 33 The anti-divorce campaign in both constitutional referenda on the issue was largely driven by strong Catholic lobby groups, which emphasised the potential impact of divorce on the financial security of families.Footnote 34 Accordingly, the constitutional amendment eventually adopted stipulated that divorce could not be granted unless ‘proper’ provision was made for the spouses and any dependent children of the marriage.Footnote 35 A key issue therefore is the extent to which this constitutional criterion is compatible with personal choice, in the form of prenuptial agreements.
Ireland's socio-religious background has also contributed to a particular model of the family. The Irish Constitution is fundamentally patriarchal,Footnote 36 with a repeated emphasis on different gender roles within marriage, society and the labour market.Footnote 37 Although women's employment participation has increased considerably over recent decades,Footnote 38 specialised gender roles within the family remain commonplace.Footnote 39 It is therefore particularly important in the Irish context to consider autonomy and fairness issues from a gender perspective, given the impact of traditional caring roles on women's financial security and independence.
(b) Constitutional context
Ireland is unusual as a constitutional dimension affects the enforceability of spousal agreements. This is because of the pre-eminent constitutional role given to the (marital)Footnote 40 family. Art 41 of the Irish Constitution states that the family possesses ‘inalienable and imprescriptible rights, antecedent and superior to all positive law’;Footnote 41 the state must therefore ‘guard with special care the institution of Marriage, on which the family is founded, and … protect it against attack’.Footnote 42 In relation to marital agreements, Art 41 might be variously interpreted as prohibiting any term that pre-empted marital breakdown (the traditional common law approach, buttressed in Ireland by the special constitutional position of marriage), or as requiring courts to respect internal family decisions (to the extent of upholding separation agreements that the court deems inappropriate). This second approach is supported by the recognition in Irish constitutional law of an implicit rightFootnote 43 to marital privacyFootnote 44 and a right to familyFootnote 45 as well as individual autonomy.Footnote 46 The right to make family decisions without unwarranted state intervention is a consistent theme in the case-law and has resulted in the rejection of legislation conferring automatic spousal property entitlements.Footnote 47 However, the right has generally been used in the negative sense, to restrain unlawful state interference with family decision making, and (to date) there has been no case alleging a positive right to financial self-regulation.Footnote 48
Constitutional rights may be restricted for the common good, conceptions of which may change over time.Footnote 49 Hence, the courts may have a mandate to amend or overrule settlements or agreements that undermine the public interest. The right to make family decisions free of state interference is also implicitly limited by the explicit constitutional requirement that ‘proper’ provision must be made on divorce;Footnote 50 for instance, the Supreme Court recently emphasised that ‘It is … for the court to be itself satisfied that the provision, whether present or future, is proper and the court, therefore, has a separate role in being so satisfied even where the parties have come to an agreement about financial provision of one sort or another.’Footnote 51 Hence, the duty to make full disclosure of resources has a constitutional aspect in Irish law, since this impacts on the court's ability to evaluate whether proper provision is being made.Footnote 52
Overall, this suggests that post-nuptial agreements, at least, should be upheld unless the constitutional ‘proper’ provision standard is violated, although this particular point has not been argued. The question of whether the same applies to prenuptial agreements remains open, since, by definition, the couple were unmarried and hence not a ‘family’ in constitutional terms at the time of the agreement.Footnote 53 To date, Ireland has not moved from the traditional common law view that prenuptial agreements are void on public policy grounds, insofar as they contemplate marital breakdown.Footnote 54 It has been contended that the removal of Ireland's constitutional prohibition on divorce sufficiently alters the public policy context to permit prenuptial agreements.Footnote 55 Although the Study Group advocated limited statutory recognition for prenuptial agreements, as discussed below, it emphasised that such agreements must be reviewable to ensure constitutional compliance.Footnote 56 However, as previously noted, these recommendations have not yet been implemented.
(c) Legislative context
Notwithstanding the constitutional emphasis on family authority, Irish legislation places little emphasis on self-determination in relation to financial arrangements on marital breakdown. Provision under the Family Law (Divorce) Act 1996 is discretionary, and very extensive orders are permitted to make ‘proper’ provision.Footnote 57 However, although proper provision must be evaluated in the light of specified factors,Footnote 58 there is little guidance on what the term actually means, though it has been held to incorporate principles of fairness.Footnote 59 Nor can spouses define proper provision for themselves as there is no power to opt out of the statutory regime. Legal advisors must inform spouses of the possibility of mediation,Footnote 60 but mediation is not obligatory; nor is a mediated agreement binding on the court. The only explicit statutory recognition of private agreements is that a court must ‘have regard’ to an existing separation agreement, but as noted early in the case-law, the legislation gives no indication of how much ‘regard’ must be had.Footnote 61 There is no statutory requirement that the court must have regard to the terms of a prior consent separation order, though in practice the courts generally do so.Footnote 62
(d) Structural context
Notwithstanding the lack of a statutory emphasis on agreement, structural considerations have contributed to a strong, informal pressure to settle cases out of court. The lack of specialised family courtsFootnote 63 means that the general courts typically set aside a few days a month to deal with extensive lists of family cases.Footnote 64 In practice, this leads to long delays, and cases may drag on for many months, with partial hearings on various dates.Footnote 65 Court facilities are generally poor: for instance, there are typically no designated waiting or consultation areas.Footnote 66 For many litigants, the length of the processFootnote 67 may lead to considerable pressure to settle cases, which is then exacerbated by the inhospitable nature of the bargaining environment. From this perspective, the quality of party autonomy must be seriously questioned, particularly since information on the broader legal picture is generally lacking,Footnote 68 making clients reliant on professional expertise. Obviously, these structural concerns relate primarily to divorce and judicial separation settlements, as negotiations on prenuptial agreements are conducted in a different environment. However, as discussed below, the little jurisprudence Ireland has on family autonomy essentially arises from the separation agreement and divorce settlement context, making the environment in which marital breakdown negotiations are conducted highly relevant.
Further, Ireland's current system for financial provision on marital breakdown dates only from 1989, with the enactment of the first legislation on judicial separation.Footnote 69 For this reason, combined with Ireland's small population, and the fact that most separation and divorce cases are heard in the Circuit Court (where there are few written judgments),Footnote 70 the Irish jurisprudence on marital breakdown is relatively undeveloped. This comparative dearth of case-law has been exacerbated by the operation, until recently, of a strict in camera rule, which meant that family law cases were heard in private and largely went unreported. Although the in camera requirement has now been modified,Footnote 71 it leaves a serious legacy issue, as there is little reported case-law on spousal agreements.
(e) Jurisprudential context
Given its traditional policy concerns, it is unsurprising that Ireland has almost no jurisprudence on prenuptial agreements.Footnote 72 However, it has a reasonable number of written judgments on the weight to be accorded to separation agreements and settlements, which offer some insights into judicial conceptualisations of family financial autonomy.Footnote 73 These insights are limited, as there has been little discussion in the case-law of why marital agreements should be upheld.Footnote 74 The general approach appears to be one of balancing normal contractual principles (with implicit assumptions of autonomy) with the constitutional and statutory standard of proper provision (fairness), with regard also to the desirability of certainty and finality.Footnote 75 Changes in the parties’ circumstances are considered as an aspect of proper provision, but other issues that might impact on either autonomy or fairness have received little attention. These silences are themselves indicative. For instance, there is no reference in Irish case-law to systemic gender disadvantage in the negotiation process, even though this is likely to be greater in discretionary marital property systems where spouses have no defined bargaining endowments.Footnote 76 Nor is there any reference to the implications of marital agreements for gender equity and the so-called ‘feminisation of poverty’.Footnote 77 There is no definitive judgment analysing what is meant by volition or capacity in the marital agreement context, or discussing the emotional or financial pressures that may apply on marital breakdown.Footnote 78 This may be because the constitutional and legislative emphasis on proper provision has encouraged a practical concentration on that aspect: in simple terms, the cases have not presented an autonomy-based argument but have focused on what is essentially a narrative of fairness.Footnote 79
Thus, in K v K (No. 2),Footnote 80 the High Court emphasised that proper provision must exist or be made at the time of divorce, and that this is less likely if a separation deed is very old. In that case, a separation deed concluded nearly 20 years previously was found not to constitute proper provision in the light of the circumstances prevailing at trial.Footnote 81 The separation agreement was not involuntary; nor had there been any unforeseeable change in circumstances, yet the Court's focus was on the proper provision standard.
More recently, in G v G,Footnote 82 where the Supreme Court finally addressed the weight to be accorded to a separation agreement when making provision on divorce, it repeatedly emphasised that proper provision is for the Court to determine, and that ‘the statutory duty prevails’ over the parties’ agreement.Footnote 83 However, the Court also emphasised the significance of autonomous decision making, stating that a separation agreement ‘should be given significant weight’Footnote 84 and is ‘a significant factor’Footnote 85 because it is ‘entered into with consent by both parties’.Footnote 86 This applies particularly where the agreement was intended to constitute a full and final settlement, as a clean break is ‘a legitimate aspiration’.Footnote 87 No comment was made on the nature of consent or autonomy (as these issues did not arise on the facts).Footnote 88
This is possibly the greatest lack in the Irish jurisprudence in this area – there is no analysis of the nature of consent or agreement in the family context, or of why either should matter, other than a policy emphasis on finality. There appears to be no judicial notice of the pressures that may apply in the marital breakdown context or of the possible vitiation of consent, outside the traditional contractual and equitable doctrines.Footnote 89 Quite apart from the financial and emotional pressures that may apply, the highly pressured environments in which family negotiations are frequently conducted may contribute to agreements that fail to reflect either what a spouse truly wants or what he or she might hope ultimately to obtain in court. Can such an agreement truly be considered voluntary? This point has never been raised in the case-law, perhaps because pressure of this kind does not fit within the accepted autonomy framework. Alternatively, it may simply be easier to raise an argument on the point of proper provision than to try to expand existing contractual and equitable doctrines (at least prior to G v G).
The nearest approaches to judicial analysis of why agreements should be respected are contained in two unreported judgments of the High Court, both given by Abbott J. In JC v MC,Footnote 90 Abbott J stated that spouses might go further than they were willing to do, financially or otherwise, to achieve finality. The benefits of closure were not only financial, but could also be non-material, such as ‘physically, emotionally and even spiritually clear personal spaces’ for the parties.Footnote 91 The emphasis here is more on policy than on autonomy, though the standard liberal view of autonomy and volition is implicit.
In SJN v PCO'D,Footnote 92 Abbott J went further and summarised the interest of divorcing spouses and of the public in upholding ‘full and final settlement’ clauses as being based on four factors: commercial and economic reasons; the sharing and avoidance of risk; the avoidance of emotional turmoil and unresolved conflict due to uncertainty and the risk of continued litigation; and the avoidance of further costs. He emphasised that ‘relieving social legislation’ should not inhibit the pursuit of commercial goals, and that the court was obliged to consider not just the quantitative aspects of the asset division, but also its ‘qualitative aspects’, relating to matters such as the architecture and sharing of risk.Footnote 93 Abbott J commented that ‘those who bear the most risk should enjoy the greater reward in economic terms’, and that the ‘full and final settlement’ clause was a means of establishing this ‘basic fairness’.Footnote 94 Emotionally, it was natural and desirable that spouses might agree to a ‘full and final settlement’ clause to guarantee stability and security for themselves and their children, and this was legitimate provided there was no undue influence. Abbott J therefore concluded that ‘very considerable weight indeed’ should be given to ‘full and final settlement’ clauses.Footnote 95
Abbott J's judgment clearly views respect for the parties’ agreement as an aspect of fair or proper provision, and again emphasises policy concerns. The closest the judgment comes to an analysis of autonomy lies in the implicit assumption that the parties have consciously and voluntarily chosen to prioritise what is of most personal concern, and that this should be respected. Other than the brief reference to undue influence, there is no recognition that the emotional and financial pressures of the separation context may undermine autonomy.Footnote 96
The limited judicial discussion of autonomy is of concern because of the increasing emphasis the Irish courts appear to be placing on agreements. This is most evident in the judicial discussion of whether a change of circumstances is required to vary an agreement, or is merely a relevant factor.Footnote 97 Obviously, requiring such a change places a greater premium on autonomy. In MG v MG,Footnote 98 Judge Buckley looked for guidance to Canadian jurisprudence on the variation of orders.Footnote 99 Citing the Canadian decision in Willick v Willick,Footnote 100 Judge Buckley noted the emphasis of L'Heureux Dubé J that it is difficult to foresee future circumstancesFootnote 101 and that ‘sufficiency’ of change ‘must be defined in terms of the parties’ overall financial situation’.Footnote 102 Furthermore, the objective foreseeability of a change does not necessarily mean that it was actually contemplated. L'Heureux Dubé J had concluded that a change must be based on ‘a material change of circumstances … such that, if known at the time would likely have resulted in different terms’.Footnote 103 Judge Buckley also cited L'Heureux Dubé J's judgment in G.(L.) v B.(G.),Footnote 104 where (citing Wilson J in the previous Canadian decision of Pelech v Pelech)Footnote 105 she emphasised both individual responsibility and autonomy, and the objectives of the (Canadian) Divorce Act 1985 as a measure by which to gauge the weight to be accorded to an agreement. Judge Buckley concluded that there were ‘good reasons why a court should be slow to alter existing agreements’; these included the protection of children and the promotion of finality and a clean break in appropriate cases, particularly where the parties were ‘well-educated intelligent persons, who have had the benefit of competent legal advice before entering into a separation agreement which is of recent date’.Footnote 106 Accordingly, there should be a ‘sufficient change’ to merit intervention.Footnote 107 This clearly assumes autonomy since it is expected that persons who are ‘intelligent’ and ‘independently legally advised’ will make well-informed, personally beneficial decisions. As previously noted, this is not necessarily the case in practice.
More recently, in G v G,Footnote 108 the Supreme Court confirmed the need for a significant change of circumstances before an agreement that otherwise constituted proper provision could be revisited.Footnote 109 The Court emphasised that, without a change in circumstances from the time of the agreement, ‘then prima facie the provision made by the Court would be the same, as long as it was considered to be proper provision’.Footnote 110 This is not quite giving primacy to the agreement, as the agreement must be evaluated to ensure it constitutes proper provision. Though not explicitly stated, this evaluation must presumably occur in relation to the time of the agreement as well as the time of the hearing. Simply upholding an agreement without further enquiry unless there were changed circumstances could not discharge the court's duty to ensure proper provision. Hence, spouses are not given full autonomy, as they must still meet the required standard. However, if an agreement amounted to proper provision when made, it will be presumed still to do so unless otherwise proven. This gives the parties some measure of certainty and finality and respects their autonomy. However, the Supreme Court placed no emphasis on the need to examine the quality of the initial agreement, and made no reference to the difficult emotional context in which many such agreements are concluded.
G v G was decided in the wake of the seminal decision of the Supreme Court of England and Wales in Radmacher v Granatino,Footnote 111 although it made no reference to that case and dealt with separation rather than prenuptial agreements. In Radmacher, the Supreme Court of England and Wales rejected as obsolete the long-standing public policy rule against agreements providing for future separation. Instead, the majority held that a pre- or post-nuptial agreement should be given effect where it was freely entered into by both parties, with a full appreciation of its implications, unless in the circumstances prevailing at the time of trial it would be unfair to hold the parties to their agreement. Effectively, therefore, the ruling introduced a presumption in favour of enforcing prenuptial agreements, and placed the onus on the spouse challenging the agreement to demonstrate why it should not be upheld. This was justified by the need to respect individual autonomy and avoid paternalism.Footnote 112 Although the majority noted the possibility of power imbalances,Footnote 113 thus adverting to some relational concerns, it held that the parties must generally be assumed to be capable of looking after themselves.Footnote 114 This very limited relational analysis contrasts with the dissenting opinion of Lady Hale, who emphasised the potential effect of changing circumstances and family decisions over time.Footnote 115 Noting that spouses ‘often compromise their individual best interests’Footnote 116 for relational reasons, she also emphasised the different power dynamic applicable in the prenuptial as compared to the commercial context,Footnote 117 as well as the broader implications of upholding prenuptial agreements for gender equality.Footnote 118
Arguably, the Irish Supreme Court in G v G drew on the strong policy emphasis of the majority in Radmacher on autonomy and the vindication of personal choice, while failing to explore these considerations in a meaningful way: the entire autonomy analysis (outlined previously) was contained in two sentences. The Irish Supreme Court made no reference whatever to bargaining inequalities or relational context, falling short of even the limited level of acknowledgement of these concerns by the majority in Radmacher. Unfortunately, this lack of analysis has had serious consequences, as later courts have effectively interpreted the Supreme Court's judgment to mean that the parties’ agreement now sets the parameters for what is considered ‘proper’. Hence, courts are unwilling to intervene with the agreed level of provision unless one party is clearly left in need.Footnote 119 Thus, in F v F,Footnote 120 Abbott J stated that he would have given ‘decisive weight’ to the agreement but for the fact that the husband, on the facts, required a small capital sum to enable him to move to a new location.Footnote 121 Similarly, in DT v FL,Footnote 122 Abbott J held that ‘The … agreement … should be given almost decisive weight subject to the exception or exceptions indicated by the particular needs arising from the failure of the settlement to address them … It would seem now that where there is a prior agreement the judgment is not “too harsh” if needs are met.’Footnote 123 Accordingly, the court could no longer give weight to considerations such as home making contributions or the loss of career opportunities.
It appears therefore that the level of protection afforded by the constitutional proper provision standard has been significantly eroded. This increases the scope for personal decision making, but also reduces the extent to which the proper provision requirement might be used to address issues of timeframing, since what is ‘proper’ is now assessed by reference to the agreement, rather than the parties’ lived reality.Footnote 124 This makes it even more imperative to ensure that the agreement truly represents the voluntary choice of both parties. It is troubling that, at present, in Ireland, there is no requirement that the parties to a separation agreement had any legal advice at all. For instance, in F v F, the parties had made an oral agreement, which they later reduced to writing without any legal assistance. The agreement was upheld as it ‘represented a fair attempt by the parties in layman's terms to finalise their financial affairs’, even if it was ‘not an agreement which lawyers would draft in the circumstances’.Footnote 125 In DT v FL, the wife had received long-distance advice from a legal practitioner she had never met. There were significant shortfalls in the advice received (for instance, she was not told that the entitlement to 15 years of maintenance under Dutch law was about to be reduced to 12 years). Again, however, the agreement was upheld, as Abbott J was not convinced that the wife could have obtained a better agreement even with superior advice, in the legal context at the time.Footnote 126 Commenting that the wife ‘knew well what she was doing’,Footnote 127 Abbott J held that the agreement was not to be set aside, though he found that it was inadequate in certain respects and accordingly ordered additional provision.Footnote 128
In one sense, if the court is satisfied that the parties made a free and well-informed decision, particularly one that accords with accepted standards for provision, the issue of independent advice becomes less relevant. It is presumably this point that Abbott J intended to make in DT v FL, notwithstanding the questionable quality of the legal advice in that case. However, the lack of any requirement for independent advice makes it more difficult to evaluate how well informed the parties were, or the degree of pressure they were under. There is therefore an increased risk of non-autonomous agreements being upheld, as well as unfair ones.
Overall, it appears that autonomy is increasingly prized in Irish divorce law. Although proper provision remains the primary criterion, this is now interpreted as incorporating respect for separation agreements. The change is clearly driven by policy concerns regarding certainty and finality. Although these are legitimate concerns, the increased emphasis on autonomy is disturbing, given the lack of analysis of that concept. To date, the explanation of autonomy is implicitly based on traditional liberal assumptions of rationality, capacity and volition. While the High Court has noted that priorities may be non-financial, there has been no acknowledgement of the pressures of marital breakdown or of the other relational concerns that may affect autonomy. This is in marked contrast to the judicial approach adopted in other contexts, such as nullity of marriage, which is highly developed in Irish law.Footnote 129 The restrictive approach to autonomy and the narrow range of policy concerns currently considered by the courts may lead to agreements being upheld irrespective of whether they were truly voluntary, or whether upholding them is socially beneficial. This danger is particularly acute given the new necessity to demonstrate significantly altered circumstances before an agreement will be reviewed. Given the curtailment of proper provision arguments in G v G (as subsequently interpreted), a move to pleading autonomy issues may be the next logical step for claimants. It is significant that DT v FL involved a (failed) challenge to the agreement itself, based on the lack of adequate advice, which allegedly undermined the quality of the plaintiff's decision making.
3. The Study Group's proposals
The Study Group's recommendations, made in 2007, were broadly similar to the subsequent proposals of the Law Commission for England and Wales, made in 2014. This is particularly noteworthy given that the Law Commission's report was the culmination of several years of public consultation and policy evaluation, whereas the Study Group was allowed only three months to make its recommendations, which did not permit public consultation.Footnote 130
Both sets of proposals advocated recognition for prenuptial agreements, though the Study Group's recommendations did not go as far as those of the Law Commission. The Law Commission recommended that pre- or post-nuptial agreements providing for the financial consequences of future marital breakdown should not be void on public policy grounds.Footnote 131 Following Radmacher, such agreements would be upheld unless they were unfair in the circumstances applying at trial.Footnote 132 In addition, the Law Commission recommended legislating for ‘qualifying nuptial agreements’, a new class of agreement that would be fully enforceable (subject to procedural safeguards) without reference to substantive fairness, provided only that spouses could not contract out of meeting each other's needs.Footnote 133 The Study Group, on the other hand, felt that prenuptial agreements should be a relevant factor for consideration in making financial orders under the marital breakdown legislation, but should not, and could not, be dispositive. Hence, the Study Group recommended legislating for the legal recognition of prenuptial agreements, rather than for their enforceability,Footnote 134 or even presumptive enforceability. Its recommendation thus fell short of the Radmacher position affirmed by the Law Commission; nor did the Study Group recommend a system of binding agreements.
This difference in approach was largely due to the different national contexts in which the two sets of recommendations were made: Ireland had no equivalent of Radmacher, and is constrained by constitutional criteria that do not apply in England and Wales. However, this dissimilarity apart, both reports placed a strong emphasis on (effectively identical) procedural safeguards.Footnote 135 Thus, both required that the parties to the prenuptial agreement should have received independent legal advice;Footnote 136 that there should be no material non-disclosure;Footnote 137 and that the agreement should be signed at least 28 days in advance of the wedding.Footnote 138 Unlike the Law Commission,Footnote 139 the Study Group made little reference to autonomy concerns,Footnote 140 other than the recommended procedural safeguards: the Study Group's report includes just a brief statement that normal contractual doctrines would continue to apply.Footnote 141 Also unlike the Law Commission,Footnote 142 the Study Group did not stipulate that the parties could not contract out of meeting needs, since it felt this was inherent in the constitutional proper provision requirement.Footnote 143
The Study Group therefore made two key assumptions. First, it assumed that legal advice, disclosure and timing requirements, combined with traditional contractual doctrines, are sufficient safeguards for autonomy. Secondly, it assumed that the constitutional requirement of proper provision would operate as a bulwark against unfairness, avoiding any risk of the ‘feminisation of poverty’ effect experienced elsewhere.Footnote 144 This second assumption was reasonable in the light of the family law jurisprudence at the time. Nevertheless, both assumptions have proved problematic.
The main problem with the Study Group's first assumption is that it is based on a very limited conception of autonomy, premised on a general assumption of free choice and volition. The Study Group does not ask whether traditional approaches to contract, based on liberal ideology, are appropriate in the family context; unlike the Law Commission,Footnote 145 it makes no reference to cultural, community and relational pressures, or to bargaining inequalities, and the implications of these factors in the family context. This is important because of the Irish courts’ very narrow approach to autonomy in the family financial agreement context: as noted previously, the case-law on separation agreements makes no reference to the emotional pressures that may apply in marital breakdown, or to the presence of systemic gender disadvantage in the negotiation process – points that have received at least some recognition in the case-law in England and Wales.Footnote 146
This is significant because of the increased emphasis on upholding agreements following G v G, and the consequent erosion of the proper provision standard (which also undermines the Study Group's second assumption). If, as subsequent case-law suggests, the presence of a separation agreement means that the scope of proper provision is now restricted to need, there is clearly more potential for unfairness than previously thought. While the Supreme Court's emphasis on need might be thought to prevent the risk of poverty at least (and the gendered implications of this), this is not necessarily the case, since need – like fairness – clearly has a subjective element. Furthermore, as suggested in G v G and subsequently in DT v FL, ‘need’ in this context may be restricted to those needs not already dealt with in the agreement (with no reference as to whether the agreement dealt adequately with such needs).Footnote 147 That the interpretation of need can vary significantly is clear: it appears that the orders made by Abbott J in DT v FL were significantly reduced on appeal, although no written judgment is available.Footnote 148 The courts may even distinguish between ‘real need’ and ‘need’, as suggested in Radmacher,Footnote 149 further reducing the effectiveness of the constitutional safety net.
The increased emphasis on agreements has been particularly troubling in the separation context due to the lack of mandatory safeguards. As outlined previously, agreements have been upheld where the parties did not receive legal advice, or where the advice received was inadequate.Footnote 150 Procedural safeguards such as those proposed by the Study Group and Law Commission are by no means foolproof: even adequate legal advice does not really address underlying power disparities. Similarly, cut-off dates for the agreement may reduce pressure immediately before the wedding, but only by shifting the pressure to another, quite close, date.Footnote 151 Furthermore, wedding arrangements will commonly be in place long before the 28-day deadline, leading to potentially significant financial losses in the event of cancellation. Disclosure requirements, though more substantive in nature, may also be contentious in practice: how significant must a non-disclosure be to merit intervention?Footnote 152 However, while these requirements do not guarantee autonomy, they offer some protection against the most blatant abuses of power, and a guide towards best practice.
The lack of mandatory protections in Ireland is particularly significant since (as in England and Wales) the list of factors to which the court must have regard in making financial orders is not exhaustive. The Irish courts may therefore opt to follow Radmacher, and recognise prenuptial agreements as a valid consideration in exercising their statutory discretion.Footnote 153 Should this happen, and should the courts then follow the separation agreement jurisprudence, Ireland could end up with the worst of both worlds, with prenuptial agreements accorded significant weight, without any statutory protections.
The courts might, of course, take a different approach to prenuptial agreements, even if they were to recognise them. As Lady Hale suggested in Radmacher, there may be strong policy grounds for treating prenuptial agreements differently from post-nuptial agreements.Footnote 154 At the marital breakdown stage, many of the issues have already crystallised, and the parties have a feel for their resources and capacities, as well as their needs and responsibilities. Arguably, therefore, much less foresight may be needed than for a prenuptial agreement. The emotional context will also differ greatly. Hence, it might be reasonable to approach the two kinds of agreement differently. However, there is no hint of such a dual approach in current legal discourse, which has so far emphasised the need to ‘uphold agreements’, without reference to the type of agreement concerned.
The current lack of statutory protections is also troubling, since existing contractual doctrines (such as duress, undue influence and unconscionability) are often inadequate to protect intending spouses who have been subjected to unfair pressures. Duress, in Irish law, is a mutable concept, with no single standard applicable.Footnote 155 Generally, however, the pressure of difficult circumstances is insufficient for duress;Footnote 156 some element of threat or coercion is required, which goes beyond the ‘normal’ bargaining process.Footnote 157 Similarly, the doctrine of undue influence does not address power disparities, pressures and unequal bargaining power arising from causes other than relational exploitation (for instance, economic inequality). This applies particularly where the plaintiff is considered to have had a viable alternative to signing the agreement.Footnote 158 Nor is there any presumption of undue influence in the case of engaged parties;Footnote 159 indeed, Thompson notes the possibility that gendered power disparities are so normalised that courts may regard them as insufficiently ‘exceptional’ to merit intervention.Footnote 160 The most potentially useful doctrine is that of unconscionability, which has received a broader application in Ireland than in England and Wales.Footnote 161 Thus, a transaction may be set aside where one party was at a serious disadvantage (financial, emotional or otherwise),Footnote 162 and the other party took unfair advantage of this.Footnote 163 However, it is unclear how far personal bargaining capacity must be affected, or what factors will be taken into account in assessing this, or indeed, how improvident the transaction must be. Further, as Thompson notes, the ability of contractual doctrines to address prenuptial power disparities may be limited by their commercial origins.Footnote 164 This is borne out by evidence of extreme reluctance in some jurisdictions to intervene with marital agreements, such as divorce settlements, on grounds of unconscionability.Footnote 165
4. Strengthening the recommendations
Faced with gaps in the 2007 recommendations, and in the face of apparent policy concerns, is there any way to strengthen the Study Group's proposals? It seems unlikely that a longer period of consultation would lead to significantly different recommendations (on the evidence of the substantially similar Law Commission report): if anything, the Study Group's proposals might rightly be regarded as more moderate than those of the Law Commission. However, the gaps identified above may still be addressed to some extent, though it should be noted that, in attempting to do so, the Irish legislature faces possibly unique constitutional constraints.
(a) Promoting relational approaches
(i) Statutory vitiation grounds
It is clear from other areas of law that Irish judges are capable of taking a nuanced approach to autonomy,Footnote 166 and it might be possible to encourage the development of similar understandings in the marital agreement context. For instance, it may be possible to legislate in a way that encourages greater judicial emphasis on relational points, without permitting agreements to be set aside due merely to the presence of vulnerabilities.
In this regard, the Law Commission's proposals do not have much to offer. The safeguards it recommends are already included in the Study Group's report, and the Law Commission's greater normative commitment to enforcing prenuptial agreements led it, if anything, to reduce the scope for intervention.Footnote 167 However, it is instructive to examine Canadian developments.Footnote 168 Recent legislation in British Columbia (BC),Footnote 169 although largely informed by neoliberal perspectives on the value of upholding agreements,Footnote 170 nevertheless provides that agreements may be wholly or partly set aside on grounds of defective process or significant unfairness.Footnote 171 Section 93(3) of the Family Law Act 2011 states:
(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.
This statutory list of vitiating factors is exhaustive. Much of it reflects previous Canadian case-law, which is mirrored in the Irish context (for instance, decisions on material non-disclosure, and existing contractual principles). Section 93(3)(c) might address such concerns as an inability to understand the language of the agreement or its legal significance; this last might well be addressed by adequate professional advice. This subsection may therefore not add much to a requirement that professional advice be received, as recommended by both the Study Group and the Law Commission, although it could incorporate some additional elements.
However, s 93(3)(b) is of particular interest, both in Ireland and in England and Wales, as it directly implements the decision of the Supreme Court of Canada in Rick v Brandsema.Footnote 172 In that case, the wife challenged the provisions of a separation agreement on the grounds that her husband had knowingly exploited her mental instability and had deliberately concealed or undervalued assets to avoid paying her the full sum to which she was legally entitled under Canadian law. She therefore argued, inter alia, that the agreement should be set aside as unconscionable. Although her claim was originally rejected, the Supreme Court of Canada ruled, on appeal, that spouses in separation negotiations were under a duty to avoid exploitative behaviour, and that an agreement that significantly departed from the statutory objectives for spousal support could be unenforceable on grounds of unconscionability.Footnote 173 Significant non-disclosure could also justify judicial intervention, since this might affect a spouse's capacity for proper decision making.Footnote 174
Rick is generally viewed as a refinement of the doctrine of unconscionability in the light of family concerns.Footnote 175 For instance, the Supreme Court of Canada emphasised the ‘singularly emotional negotiating environment’ and ‘uniquely difficult context’ of marital breakdown,Footnote 176 which made it essential to ensure that the negotiating process was ‘free from informational and psychological exploitation’.Footnote 177 The Court therefore recognised the power disparities that might apply in marital breakdown negotiations, although it emphasised that vulnerability alone would not necessarily negate a valid agreement.Footnote 178 The Court did not require that the vulnerability of the exploited spouse should arise from the other spouse's conduct: in Rick, the husband was not to blame for his wife's instability, and in other cases, a spouse's vulnerability might arise from external factors, such as poverty or community pressure. What matters, therefore, is not the source of vulnerability, but the other spouse's exploitation of it. Furthermore, the Court held that the ‘mere presence of professional assistance’, such as legal advice, would not necessarily counteract such vulnerabilities, since much depended on the ability of the recipient of advice to benefit from it.Footnote 179 Rick therefore broadened the consideration afforded to relational factors, while retaining a normative commitment to non-exploitative agreements, the approach now reflected in BC law. Although Rick concerned a separation agreement, and different relational issues might arise in the prenuptial context, a broad principle that spouses or intending spouses should not deliberately exploit each other's vulnerabilities would be compatible with the recommendations of both the Law Commission and the Study Group.
BC's normative commitment to upholding contractual agreements is further reflected in a saving provision in s 93(4). This provides that the court may decline to intervene, notwithstanding a defect in process, ‘if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement’. This appears rather harsh, since the standard for intervention is already quite high: non-disclosure must be significant, or a spouse must effectively have been exploited, or unable to understand what he or she was signing, or the common law criteria for voidability must be met. Presumably, the objective was to give the court power to uphold agreements where they were not substantively unfair, or where the court might have made substantively similar orders, had a case been contested. While this may reduce litigation, it seems to undermine the point of autonomous decision making. It is also questionable from a fairness perspective: where an appeal is argued under s 93(3), limited evidence on other matters may be presented.
Notwithstanding this arguably unnecessary addendum, an exhaustive list of vitiating factors offers potential benefits. It offers some security to those signing marital agreements, that their arrangements will not be too easily overset. However, it also recognises that agreements can be problematic, and directs the court's attention (and that of contracting parties and their advisors) to particular concerns.
A key question is whether potential intervention should be restricted to instances of relational exploitation, as under s 93(3)(b). As drafted, the subsection has the merit of recognising a broader range of vulnerabilities, while not permitting them to overset agreements without more, arguably representing a balance between relational and reliance concerns. However, it does not capture situations where intending spouses come under pressure from third parties (such as family members), but where spousal exploitation is lacking. This might apply where either party's family applies pressure to protect an asset (such as a family farm), and might especially affect women from particular cultural backgrounds, who might be pressured to sign agreements in line with their community norms, as opposed to legal norms.
As previously noted, such situations would probably not fall within existing contractual doctrines. It might therefore be useful to specify an additional circumstance for intervention, where a spouse's independent will was overborne by external pressure. This might be difficult to prove, particularly where independent advice was received, but it would capture a particular relational concern. However, the mere presence of pressure would not be sufficient to overset an agreement. Relational autonomy permits the individual to make decisions based on relational concerns, and an individual might well prioritise family peace or community standing over substantive fairness. The question is whether the individual feels a real degree of choice in signing an agreement: if so, it is valid from an autonomy perspective, notwithstanding the associated costs. Again, therefore, a normative commitment to agreements remains possible, while upholding relational values.
(ii) Discounting agreements
A second means of strengthening the recommendations through enhanced recognition of autonomy relies on the particular way the Study Group proposed to recognise prenuptial agreements. The Study Group did not recommend that agreements should be presumptively dispositive, but rather that they should be specified as a factor to which the court could ‘have regard’ when considering what provision would be proper, in the same way as it might consider the numerous other (non-exhaustive) statutory factors.Footnote 180 The Study Group assumed that the court could adjust the weight accorded to a particular agreement in the light of the circumstances of the case, which might well include autonomy concerns. However, this assumption is weaker following G v G, since courts might take the same approach to prenuptial agreements as to separation agreements, bringing it closer to the Radmacher position in England and Wales.
A possible solution would be to specify that, when considering the weight to be attached to a prenuptial agreement, the court should consider a range of matters. Again, the BC example is illustrative. Section 93(5) of the 2011 Act provides that, even if an agreement cannot be impugned under s 93(3), the court may set aside or modify all or part of an agreement if satisfied that it is ‘significantly unfair’, on consideration of particular factors. These are the length of time since the agreement was made, whether the parties had intended the agreement to achieve certainty, and the degree to which the parties relied on the agreement.Footnote 181 The first of these may be relevant insofar as a very old agreement may have failed to cater for unforeseen contingencies or material changes in circumstances, thereby recognising a key policy concern in relation to prenuptial agreements. As noted previously, this factor has been recognised in Ireland in relation to separation agreements, and it has additional force in relation to prenuptial agreements.Footnote 182 The second factor may be relevant if it is clear that the parties were mutually concerned to limit their marital liabilities or to retain assets for children from previous relationships. Again, some parallels may be drawn with the judicial emphasis on the parties’ intentions where dealing with ‘full and final settlement’ clauses in the Irish separation agreement context,Footnote 183 and also with the decision of the Supreme Court of England and Wales in Radmacher. From this perspective, therefore, the first two clauses add little, though it might be useful to codify them. However, the third factor is of considerable significance, as it opens up the timeframe for evaluating autonomy, and permits an examination of the parties’ lived reality. For instance, the parties might have agreed not to mingle their assets, but in practice may have opened joint bank accounts or acquired property as joint tenants, thereby demonstrating an implicit intention to depart from the original agreement. Alternatively, the agreement might have assumed that both parties would remain in paid employment and divide childcare responsibilities equally, whereas in practice one spouse may have left the workforce to care for the children of the marriage and support the other's career. This would demonstrate not only an unforeseen contingency (as under the first criterion),Footnote 184 but would render it unjust if the other spouse could nevertheless implement the agreement in full.Footnote 185 From the Irish perspective, therefore, it might be useful to have an equivalent provision, highlighting similar factors for the court to consider when evaluating the weight accorded to the agreement. It would also be compatible with the Law Commission's recommendations regarding marital agreements other than qualifying nuptial agreements, and with the principles in Radmacher.
(b) Strengthening ‘proper’ provision
Finally, the Study Group's proposals might be strengthened by focusing on the issue of proper provision, particularly the extent to which the court might discount or modify an agreement in the interests of substantive fairness. This resurrects the central concern when legislating for prenuptial agreements: what is the point of permitting agreements at all, if courts can simply override them? However, as noted above, the assumption that the courts could do just this underpinned the Study Group's proposals.
Given that this assumption has since lost much of its force, and the scope of proper provision has been eroded (in the separation agreement context at least), is there a way to reinforce the statutory and constitutional safety net, while still leaving room for self-regulation? The Law Commission recommended that an agreement should not be enforced to the extent that it would leave either party in need, though for practical reasons it did not propose to define this and recommended that the Family Justice Council should issue guidelines,Footnote 186 which it subsequently did.Footnote 187 Statutory criteria for provision would be problematic in Ireland, given the constitutional requirement of provision that ‘the Court considers proper’.Footnote 188 Accordingly, legislative attempts to fetter the court's discretion could be unconstitutional,Footnote 189 and even guidelines might be problematic. However, a rebuttable presumption that a spouse should not be left in need, where this could be avoided, should be possible, as long as it was clear that the court's discretion prevailed.
Would this offer any advantage over the current proposals, given that G v G itself, and the subsequent case-law, also emphasise (albeit in the separation agreement context) that spouses should not be left in need? As previously discussed, the G v G formulation, as subsequently interpreted, apparently restricts the consideration of ‘need’ to those needs that have not been specifically addressed in the agreement, and does not consider the adequacy with which needs have already been addressed. Nor is the scope of ‘need’ clearly defined. From this perspective, a statutory presumption could be useful to prevent a race to the bottom.
There is of course a further consideration of whether modification of prenuptial agreements on substantive fairness grounds should be limited to considerations of need, or should encompass considerations of contribution and compensation. In this regard, distinctions may be drawn between separation and prenuptial agreements: is the G v G approach appropriate to the prenuptial context, given the significant differences between the two types of agreement? It is also necessary to be cautious in borrowing from other jurisdictions, where structural conditions and bargaining endowments may differ significantly. For instance, one of the reasons it is possible to contract out of marital property entitlements in Canada is because it is not possible to contract out of spousal support entitlements.Footnote 190 The Study Group's proposals did not discuss what the ‘baseline’ for provision should be (and indeed, could not do so, in the light of the court's overriding constitutional discretion). However, it should be possible to stipulate that the mere existence of a prenuptial agreement should not prevent the court from considering what provision would be proper in the light of the normal statutory factors, perhaps thereby preventing too slavish an application of G v G. Indeed, it might be useful here to draw on the alternative approach proposed by Lady Hale in Radmacher, and provide that the court should first consider what provision would be proper in the circumstances, and then consider the extent to which the prenuptial agreement should impact on that provision.Footnote 191
Conclusion
The Study Group's recommendations, though in broad accord with the Law Commission's proposals, have been overtaken by events. The decision in G v G, in particular, has led to the worst of both worlds – an increased emphasis on party autonomy, without much interrogation of what that means; and an emphasis on upholding agreements, without any mandatory protections, other than whatever lingering meaning still attaches to ‘proper’ provision. These changes have had significant consequences in relation to separation agreements, and could be highly problematic if applied in relation to prenuptial agreements as well. From this perspective, if Ireland fails to legislate for the recognition of prenuptial agreements, the danger remains that the courts may recognise them anyway, as occurred in England and Wales in Radmacher, but without appropriate safeguards or any real policy analysis.
However, simply adopting the Study Group's existing proposals is not sufficient to address the problems identified. Procedural protections, though necessary, are inevitably limited in their scope and effect, and are unlikely to address the underlying relational issues that may impact on prenuptial bargaining processes. It is therefore vital to encourage courts to engage more meaningfully with autonomy concerns in the financial agreement context. A more relational approach would broaden the scope of judicial enquiry, without leading to agreements being too easily overturned on ‘emotional’ grounds or due to the existence of social or economic pressures. Such an approach could help to ameliorate serious injustice in appropriate cases, for instance, by setting aside or reducing the weight accorded to agreements that did not accord with the parties’ lived reality, or which were exploitative. This would permit a normative commitment to autonomy, but in a more nuanced manner. The BC Family Law Act 2011 provides a useful model as to how this might be achieved through statutory means, with some suggested additions.
Legal developments since the Study Group's report require attention, particularly with regard to the reduced scope of ‘proper’ provision in the spousal agreement context, and the space left for the court to address considerations of need. Again, this is something that could be strengthened through appropriate statutory presumptions, and perhaps greater direction regarding the stage of the judicial decision making process at which a prenuptial agreement should be considered.
Amendments of the kind proposed might lead to an increased risk of litigation, since they offer disadvantaged parties the opportunity to challenge agreements. There is obviously a concern that this could undermine the whole point of prenuptial agreements, which is to give intending spouses a measure of control and certainty. However, it might equally be argued that giving spouses scope to challenge unfair or exploitative agreements is not only appropriate, but is essential for justice. Indeed, clarifying the grounds for challenging agreements might well reduce litigation, by preventing spurious claims. From this perspective, the proposals advanced here strike an appropriate balance between autonomy and fairness concerns.
Ultimately, if we decide to uphold prenuptial agreements in order to respect autonomy, we need to be sure that this is in fact what we are doing. Agreements that are heavily influenced by relational inequalities and exploitation are often lacking in genuine autonomy. This is something that we need to accept and address, insofar as we can, while still upholding the principle of self-determination. This does not require us to disregard all prenuptial agreements, but it does require us to be willing to see and deal with potential problems and injustice, as far as possible.
