3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
The spouses do not have a choice of matrimonial property regimes. The governing statutory provisions effective upon separation and divorce cannot be avoided by private, inter-spousal arrangement. All marital agreements are made in light of the governing provisions, and cannot be regarded as absolutely binding upon the parties as they remain subject to the approval of/amendment by the Irish courts. Typically they will not be enforced if they do not secure proper provision for the parties and/or where it is in the interest of justice not to enforce the terms agreed.
3.2. What are the formal requirements and who should I contact?
Marital agreements must be formally executed in the form of a deed and signed by both parties. They can be approved by the courts as a consent order, giving the agreement the status and effect of a court order. Where a marital agreement is made an order of court, its enforcement is then subject to the normal rules and expectations of compliance with court orders. The enforcement of the terms of an agreement not made an order of court is subject to the rules and enforcement mechanisms of contract law.
As distinct from a marital separation, a divorce cannot be obtained by agreement between the parties. To secure an order of divorce, court proceedings must issue and although the parties can come to a consent-based arrangement regarding ancillary relief issues, these arrangements only have the force of law by order of the courts.
3.3. When may the contract be concluded and when does it come into effect?
Marital agreements can be concluded at any time, prior to and/or during the course of the marriage. They become effective in line with the terms of the agreement, subject to compliance with the proper provision requirements of the governing legislation.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The spouses can mutually agree to the modification of the terms of a marital agreement. Equally one spouse can apply to the courts for relief pursuant to the governing legislation, notwithstanding the existence of the agreement. However, the courts will not typically amend the terms of an agreement unless it would be in the interests of justice to do so.
