Autonomy and prenuptial agreements in Ireland: A relational analysis

Abstract

Unlike England and Wales, Ireland has not yet moved from the traditional common law rejection of prenuptial agreements. Nevertheless, similar policy concerns continue to be debated in both jurisdictions, particularly regarding the balance between autonomy and fairness concerns, and gender equity. In 2007, an Irish ministerial Study Group recommended limited recognition of prenuptial agreements, foreshadowing similar proposals by the Law Commission for England and Wales in 2014. However, the Irish recommendations were never implemented, despite sustained lobbying. This paper draws on relational theory to scrutinise the Study Group s proposals, identifying its core assumptions and their implications. The paper contends that Irish courts dealing with spousal agreements have tacitly accepted liberal conceptualisations of autonomy, which may lead to injustice. Furthermore, the Study Group s recommendations have been overtaken by events. Recent decisions on spousal agreements emphasise respect for party autonomy, without interrogating what this means. This could be problematic if applied to prenuptial agreements. Accordingly, the paper suggests modifications to the Study Group s proposals, to address relational concerns. In this regard, 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.