All couples could benefit from prenuptial agreements, covering not only finances, but division of housework and parenting roles, writes Kathryn Holmquist
Ciara and Seán don't know what went wrong. They felt like best friends when they married seven years ago. They met at the company where they both worked and their courtship mainly consisted of nights in the pub with work mates.
But after the births of their two children, Ciara found herself trapped at home while Seán continued his busy lifestyle of travel and socialising, which became more intense as he progressed up the ranks of his company. Seán's career was so demanding that Ciara couldn't manage the household and work outside the home as well.
Thrown back on her own resources in an isolated suburb where she knew few people, Ciara had to grow up fast and soon felt like the only responsible adult in the house. When he was at home, Seán didn't do any of the things that Ciara had expected of him. Her anger at Seán for being away so much gradually developed into indifference, until the two resorted to separate bedrooms.
They tried marriage counselling, but it was too late. They are now going through a messy divorce.
Could a prenuptial agreement have helped Ciara and Seán? It's possible that if they had agreed in advance what their lives would be like, they wouldn't have ended up in such an unbalanced situation, where Ciara sacrificed her own career for Seán's, for little reward. And if Seán had realised in advance that fatherhood would mean him being required to spend much more time at home and sharing in domestic duties, would he have changed his behaviour? Maybe so.
There was a time when marriage was always for life - and a life sentence for many. But today we see marriage differently: we expect emotional succour, sex and success. For the "me generation", both the expectations and the fear of emotional intimacy may be so great that even the idea of committing is terrifying, never mind being married to one person for 40 or 50 years.
Other couples may be recklessly unrealistic, seeing each other through rose-tinted spectacles until the blush of romance fades and they find themselves sleeping with a stranger. As a Government inter-departmental committee embarks on an overhaul of the marriage laws, there is a growing view that we need to question our assumptions about the institution.
For marriage to survive, we must rethink our approach to it, believes Yvonne Jacobson, a counsellor and sex therapist with the Marriage and Relationships Counselling Service in Dublin. Premarital agreements that cover issues such as parenting, time management, finances and conflict resolution should become the norm, she says. Instead of seeing marriage as a permanent, static arrangement, couples should create five- to seven-year contracts setting out their expectations of the relationship. Renewing the contracts periodically, would allow couples to keep their marriages alive.
"It can only be helpful for marriage, by raising consciousness and making people think about what they are getting into," she says.
It may appear calculating to go the route of Michael Douglas and Catherine Zeta Jones, drawing up a contract before walking up the aisle. Stories of prenuptials that include stipulations over how much weight a partner may gain make the concept seem shallow. But prenuptial agreements are already recognised in law in many EU states, the US, Canada and Australia. Jacobson believes that agreements which include lifestyle and relationship issues are realistic rather than cynical, because couples who anticipate the possibility of conflict and plan for how they will deal with it, have a better chance of staying married.
She sees the process as being like an NCT (National Car Test) system for marriage. Just as you get your car checked periodically to make sure that it is working safely, so you should engage in marriage check-ups.
Support for Jacobson's concept has come from the Government-funded Family Mediation Service and from Geoffrey Shannon,family law solicitor, DIT law lecturer, Irish expert on the European Commission for Family Law and author of Children and the Law. He addressed 120 family law solicitors in Dublin on Thursday, telling them that the wide-ranging prenuptial agreement is "an idea whose time has come" for Irish couples.
"The marriage contract is the most important legal contract any of us will ever sign, yet most of us enter it with a naïvety that is frightening," says Shannon.
Most couples marry without a clue as to their legal standing regarding assets, he says. It would be healthier for marriage if couples understood their joint financial responsibilities and rights before marriage. While this could be seen as creating work for family lawyers, Shannon believes that this would ultimately create less work because couples who have negotiated their mutual rights and goals are less likely to have a costly and acrimonious court battle should they separate.
Traditionally, premarital agreements focus on financial issues, but Shannon would like to see them extended to cover personal and lifestyle issues. Since the introduction of the Family Law (Divorce) Act 1996, the way is clear legally for couples to negotiate prenuptial and even postnuptial agreements that address a wide range of issues, he believes.
Nor is there anything to stop couples who are already married from sitting down and negotiating a written postnuptial agreement. As life becomes more complicated for couples, especially with the arrival of children and financial changes for better or for worse, they may find themselves in a very different situation than they expected when they married. Rude shocks can result in marriage breakdown when couples are unable to communicate their concerns.
Most couples who split are suffering from indifference, rather than hatred, says Mary Lloyd, director of the Family Mediation Service. Relatively small issues can gradually eat away at a marriage, until all love has been eroded.
Poor communication is the one thing that most separating couples have in common. By discussing and agreeing in advance on how they want to run their marriages and their lives, couples would ensure good communication and thus have a greater chance of a successful marriage, she argues.
Opening lines of communication about practical matters can even revive failing marriages. Six per cent of couples who attend the Family Mediation Service intending to separate, become reunited after sitting down with a counsellor to discuss issues such as child-rearing, property and lifestyle.
However, not all experts agree that prenuptial contracts are a good idea. Eithne Kellegher, counsellor with Accord, a Catholic marriage care service based in Maynooth, Co Kildare, says that ongoing communication is essential to a healthy marriage. But there should be no need to formally enter a contract or to re-evaluate the contract every few years, because such discussion and negotiation should be taking place on a daily basis. Pre-marriage courses are meant to prepare couples for this type of ongoing sharing and negotiation, which is why such courses are so important, she stresses.
Also sceptical of the value of written marriage contracts is Kieran McKeown, a researcher who has conducted surveys on attitudes to marriage for the MRCS and Accord. Much marital conflict occurs when women want to talk about emotional issues, while men want to hide from them, he has found.
"Marriage is a minute-by-minute process and evaluation goes on all the time. I see a fundamental difference between formal contracts and ongoing assessment and all the evaluation and aspiration that goes with that, which is very healthy. But it's a different thing to enter a regular, formal review of whether we still love each other. It could be very undermining," he believes.
For couples who do choose to enter into prenuptial or postnuptial contracts, the next question is will it stand up in court? Irish courts have a greater say over a couple's destiny than anywhere else in the world.
However, Shannon believes that our courts should give effect to prenuptial agreements as long as they are fairly entered into, with independent legal advice and full disclosure of both sides' assets and property. The interests of any children must also be considered by the court, which should retain discretion to disregard any agreement that has produced an unfair result. That said, there is no reason why such agreements should not be enforceable.
• Names have been changed
• The Government's inter-departmental commission on marriage is accepting submissions from the public until March 31st. Information from Ian Quinn. Tel: 01-7043953 Email: marriage.reform@welfare.ie