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Autonomy and prenuptial agreements in Ireland: a relational analysis

Published online by Cambridge University Press:  03 April 2018

Lucy-Ann Buckley
Lucy-Ann Buckley*
Affiliation:
School of Law, National University of Ireland Galway
*
*Author email: lucy-ann.buckley@nuigalway.ie
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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.

Keywords

family lawprenuptial agreementsrelational autonomy
Type
Research Article
Information
Legal Studies , Volume 38 , Issue 1 , March 2018 , pp. 164 - 186
Copyright
Copyright © The Society of Legal Scholars 2018 

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References

1 Brodie v Brodie [1917] 33 TLR 525. There are some limited exceptions to this broad rule, eg under the Succession Act 1965 and the Hague Protocol on the Law Applicable to Maintenance Obligations (Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations).

2 For a discussion of the policy background, see Buckley, LA ‘Ante-nuptial agreements and proper provision: an Irish response to Radmacher v Granatino’ (2011) 14 IJFL 3Google Scholar.

3 Department of Justice, Equality and Law Reform Report of the Study Group on Pre-nuptial Agreements (Dublin: Government Publications, 2007) [Study Group].

4 Ibid. Such changes included ‘the rise in the average age of marriage, the greater wealth of many at the time of marriage, second marriages, and the increase in cohabitation’ (ibid, p 41).

5 The most prominent lobby group in practice has been the Irish Farmers Association, which has maintained a consistent media campaign and lobbied politically for legislation on prenuptial agreements. See eg J Reilly ‘Seven out of ten farmers want “prenup” agreements’ (Dublin: Irish Independent, 26 April 2015); O Ryan ‘Farmers want prenups to protect them from “gold diggers”’ (Dublin: thejournal.ie, 24 September 2015), available at http://www.thejournal.ie/farmers-prenups-2348495-Sep2015/ (last accessed 30 September 2016).

6 M O'Regan ‘Now Coalition considers pre-nup agreement law’ (Dublin: Irish Independent, 25 April 2015).

7 In response to continuing media and lobby group pressure, the Minister for Justice, Equality and Law Reform referred the issue of prenuptial agreements for a policy evaluation, but a recent media report suggests that further legislative action has now been postponed in the light of unspecified ‘policy concerns’. See M O'Regan ‘Pre-nuptial law ditched due to legal problems’ (Dublin: Irish Independent, 26 June 2016).

8 Ibid.

9 Law Commission Matrimonial Property, Needs and Agreements (Law Com No. 343, 2014) [Law Commission].

10 Radmacher v Granatino [2011] 1 AC 534.

11 Key differences include population size and ethnic composition, labour market participation rates for men and women, family type, and the rate of divorce. For the most recent UK population data, see Office for National Statistics, available at https://www.ons.gov.uk/. Statistical data for Ireland is available from the Central Statistics Office, http://www.cso.ie/en/; some key figures are discussed below in relation to the Irish social context.

12 The Irish provisions on financial provision on divorce, contained in the Family Law (Divorce) Act 1996 (the 1996 Act), s 20, are broadly similar to those contained in the Matrimonial Causes Act 1973, s 25.

13 See eg B Hale ‘Equality and autonomy in family law’ (2011) 33 JSWFL 3.

14 For this paper, all judgments of the Irish Circuit Court, High Court, Court of Appeal and Supreme Court, relating to the enforcement or variation of separation agreements and consent orders on divorce and judicial separation, were examined. Cases were identified by searching the most comprehensive case databases, BAILII, available at http://www.bailii.org/, and JUSTIS, available at http://www.justis.com/, from the removal of the constitutional ban on divorce in 1995 to 31 October 2016. Three additional unreported cases in the research period were identified from other sources (specified herein). Separation agreements were generally irrelevant to judicial decision making prior to the introduction of divorce, because the existence of a valid separation agreement precludes an application for judicial separation: O'D(P) v O'D(A) [1997] IESC 10; [1998] ILRM 543.

15 For a detailed discussion of liberal, neoliberal and relational views of autonomy, see LA Buckley ‘Relational autonomy and choice rhetoric in the Supreme Court of Canada’ (2015) 29 CJFL 251 at 256.

16 Ibid; Mackenzie, C and Stoljar, N (eds) Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (Oxford: Oxford University Press, 2000) p 4Google Scholar.

17 Ibid.

18 Fineman, MA ‘Cracking the foundational myths: independence, autonomy, and self-sufficiency’ in Fineman, MA and Dougherty, T (eds), Feminism Confronts Homo Economicus (Ithaca, NY: Cornell University Press, 2005) p 179Google Scholar.

19 Dobrowolsky, A ‘Introduction: neo-liberalism and after?’ in Dobrowolsky, A (ed) Women and Public Policy in Canada: Neo-liberalism and After? (Toronto: Oxford University Press, 2009) p 14Google Scholar.

20 See eg Korteweg, AC ‘The Sharia debate in Ontario’ (2006) 18 ISIM Review 50Google Scholar; Ahmed, F ‘Remedying personal law systems’ (2016) 30 Int'l J L Pol'y & Fam 248 at 257CrossRefGoogle Scholar.

21 See eg S O'Carroll ‘Could pre-nups help Ireland's young farmers?’ (Dublin: thejournal.ie, 12 December 2013), available at http://www.thejournal.ie/pre-nups-farming-1219519-Dec2013/ (last accessed 30 September 2016).

22 For a full discussion of relevant factors, see Buckley, above n 15, at 263–267.

23 Mahar, H ‘Why are there so few prenuptial agreements?’ (Discussion paper no. 436) (Cambridge, MA: Harvard, 2003)Google Scholar, available at http://www.law.harvard.edu/programs/olin_center/papers/pdf/436.pdf (last accessed 30 September 2016).

24 Nedelsky, J Law's Relations: A Relational Theory of Self, Autonomy, and Law (New York: Oxford University Press, 2011) p 47Google Scholar.

25 Buckley, above n 15, at 263–267.

26 Ibid.

27 Ibid, at 266; Llewellyn, J and Downie, J (eds) Being Relational: Reflections on Relational Theory and Health Law (Vancouver: UBC Press, 2012) p 4Google Scholar.

28 Jackson, E Medical Law: Text, Cases and Materials (Oxford / New York: Oxford University Press, 2006) p 193Google Scholar.

29 Thompson, S Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice (Oxford: Hart Publishing, 2015) p 143Google Scholar.

30 See eg the decision of the Supreme Court of Canada in Rick v Brandsema [2009] 1 SCR 295, 2009 SCC 10, discussed below.

31 For a detailed analysis of the contractual implications of changes in the relational context over time, see Thompson, above n 29, pp 142–146.

32 Buckley, above n 15, at 265–266.

33 In 2014, the most recent year for which data is available from the Central Statistics Office, there were 2629 divorces granted in Ireland. This represented a drop of over 10% from the 2013 figure. See website available at http://www.cso.ie/en/releasesandpublications/er/mcp/marriagesandcivilpartnerships2015/ (last accessed 4 October 2016). However, according to figures released by the Courts Service, applications for divorce and judicial separation rose in 2015, by 9% and 11% respectively: Courts Service, Annual Report 2015 (Dublin: Stationery Office, 2016) p 43.

34 Burley, J and Regan, F ‘Divorce in Ireland: the fear, the floodgates and the reality’ (2002) 16 Int'l J L Pol'y & Fam 202CrossRefGoogle Scholar.

35 Art 31.3.2.iii of the Irish Constitution.

36 See M Eichler Family Shifts: Families, Policies, and Gender Equality (Toronto: Oxford University Press, 1997) ch 1, for a discussion of models of the family and their implications. Patriarchal features of Irish law include a repeated constitutional emphasis on different gender roles and standards within marriage, society and the labour market: see Arts 40.1, 41.2.1 and 41.2.2 of the Irish Constitution.

37 Arts 40.1, 41.2.1 and 41.2.2 of the Irish Constitution.

38 In 2014, 55.9% of women participated in the labour market, compared with 65.7% of men. This represents a fall from the peak employment rates in 2007, when 60.6% of women were in employment, compared with 77.5% of men: CSO Women and Men in Ireland 2013 (Dublin: Stationery Office, 2013), available at http://www.cso.ie/en/releasesandpublications/ep/p-wamii/womenandmeninireland2013/employmentlist/employment/#d.en.65815 (last accessed 4 October 2016). However, it is a huge rise from previous decades. For instance, ‘[a]pproximately seven in every ten women in the 35–44 and higher age groups were engaged in home duties in 1986’ (CSO Ireland: Census 86 Vol 6, Principal Economic Status and Industries (Dublin: Stationery Office, Pl 9819) p 12).

39 For example census data from 2006 showed that 64% of unpaid caring work was done by women: see website available at http://www.cso.ie/en/media/csoie/releasespublications/documents/labourmarket/2009/carersq32009.pdf (last accessed 20 December 2016). For a further discussion of Irish women's care responsibilities, see Lynch, K and Lyons, M, ‘The gendered order of caring’, in Barry, U (ed) Where Are We Now: New Feminist Perspectives on Women in Contemporary Ireland (Dublin: New Ireland Press, 2008) p 163Google Scholar; O'Riordan, J, O'Hadhmaill, F and Duggan, H ‘A consideration of love labour in informal caring: family caring in Ireland’ (2010) 18 IJS 82Google Scholar.

40 The Irish Supreme Court has held that the constitutional provisions relating to the family are limited to the marital family only: State (Nicolau) v An Bord Uchtála [1966] IR 567 at 643.

41 Art 41.1.1°.

42 Art 41.3.1°.

43 The Irish Supreme Court has held that rights under the Irish Constitution are not confined to those specifically enumerated, but include ‘unenumerated’ rights implicit in those that are enumerated or flowing from the ‘Christian and democratic nature of the State’: Ryan v Attorney-General [1962] IR 294 at 312.

44 McGee v Attorney General [1974] IR 269.

45 Re Article 26 and the Matrimonial Home Bill 1993 [1994] 1 IR 305.

46 Re Ward of Court (withholding medical treatment) No. 2 [1996] 2 IR 79.

47 Re Article 26 and the Matrimonial Home Bill 1993 [1994] 1 IR 305 at 326 (Finlay CJ).

48 But see Re Tilson, Infants (No. 3) [1951] 1 IR 1, where a prenuptial agreement regarding the religious upbringing of the children of the marriage was upheld.

49 Ryan v Attorney-General [1962] IR 294 at 312.

50 Art 31.3.2.iii of the Irish Constitution; LB v Ireland, The Attorney General and by order PB [2008] 1 IR 134 [50].

51 In the matter of the Judicial Separation and Family Law Reform Act, 1989, AA and BA and In the matter of the Family Law (Divorce) Act, 1996 BA and AA and by order CD [2014] IESC 49 [4.2] (Clarke J).

52 Ibid [4.3].

53 For a contrary argument, see R Aylward, Pre-nuptial Agreements (Dublin: Thomson Round Hall, 2006) p 169.

54 Brodie v Brodie [1917] 33 TLR 525; Wilson v Carnley [1908] 1 KB 729.

55 Aylward, above n 53, pp 6, 65; Buckley, above n 2 .

56 Study Group, above n 3, p 20. It was hoped that this, combined with procedural safeguards to prevent emotional exploitation (Study Group, p 85), would avert the ‘feminisation of poverty’ (Study Group, p 62). The Study Group considered that dependent spouses could be protected by retaining judicial discretion to vary the terms of the agreement or to give it only such weight as the court felt proper (Study Group, p 63).

57 1996 Act, s 20(1).

58 Although ‘proper’ provision is not constitutionally defined, s 20(2) of the 1996 Act lists numerous criteria for consideration, including financial and caring contributions, need and the effect of marital roles on each spouse's earning capacity.

59 There is no statutory yardstick of equality or fairness, but the Supreme Court has implemented a standard of fairness in practice, with some reference to equality and partnership as a means of gauging that fairness (T v T [2002] 3 IR 334). Most recently, the Supreme Court has defined ‘proper provision’ as being ‘reasonable in all the circumstances’ (YG v NG [2011] 3 IR 717 [25] (Denham CJ)), which does not particularly advance understanding. In this paper, ‘proper’ provision is roughly equated with a fairness standard insofar as it incorporates ideas of fairness and reasonableness and prescribes a substantive threshold for provision on divorce. However, proper provision may also encompass other principles.

60 The Judicial Separation and Family Law Reform Act 1989, ss 5–6, and the 1996 Act, ss 6–7, require family law practitioners to inform their clients of the possibility of mediation.

61 MG v MG [2000] 7 JIC 2503. In SN v PO'D [2010] 1 ILRM 317, the Supreme Court noted that the phrase ‘have regard to’ ‘is an expression of a very broad discretion’, and that the exercise of the duty ‘will depend on a review of all the circumstances’ (ibid, [31] (Fennelly J)). However, in YG v NG [2011] 3 IR 717, discussed in detail below, the Supreme Court held that a pre-existing separation agreement should generally be enforced, as long as it represented ‘proper’ provision, thus greatly strengthening the level of judicial ‘regard’ for such agreements and reducing the court's previous wide discretion.

62 See eg RG v CG [2005] IEHC 202. In the Supreme Court decision of SN v PO'D [2010] 1 ILRM 317, Fennelly J seemed to treat a consent judicial separation as if it were a separation agreement, in terms of the statutory obligation to ‘have regard’ to the terms of the settlement.

63 At the time of writing, the only specialised family courts are in Dublin, though there are plans to expand this.

64 See eg Coulter, C Child Care Reporting Project: Final Report (Dublin: Child Care Reporting Project, 2015)Google Scholar [Coulter Final Report] p 36, citing 100 family cases listed for hearing in a single day; Coulter, C Family Law in Practice (Dublin: Clarus Press, 2009) p 125Google Scholar.

65 Coulter, C Child Care Reporting Project: Interim Report (Dublin: Child Care Reporting Project, 2013) p 24Google Scholar.

66 Ibid, p 32.

67 Coulter Final Report, above n 64, p 52.

68 Buckley, LA ‘Irish matrimonial property division in practice: a case study’ (2007) 21 Int'l J L Pol'y & Fam 48 at 49CrossRefGoogle Scholar.

69 The Judicial Separation and Family Law Reform Act 1989.

70 In 2015, there were 4314 applications for divorce, of which only 24 were made in the High Court. There were also 1419 applications for judicial separation, of which only 35 were made in the High Court (Courts Service, Annual Report 2015, above n 33, p 43).

71 Liability and Courts Act 2004, s 40(3); Civil Liability and Courts Act 2004 (S 40(3) Regulations) 2005, SI 2005/337.

72 One of the few exceptions, In Re Tilson (Infants) (No 3) [1951] 1 IR 1, dealt with a prenuptial agreement regarding only the religious upbringing of the children of the marriage, and was upheld on this basis. However, agreements contemplating future marital breakdown have been rejected as null and void: Marquess of Westmeath v Marquess of Salisbury (1830) 5 BL 1 339.

73 This paper focuses on cases concerning prenuptial or post-nuptial agreements (including separation agreements and consent orders) dealing with property division or spousal support on marital breakdown. Most cases examined concerned the weight to be accorded to separation agreements in subsequent divorce proceedings, or in applications to vary the agreed provision. The paper does not analyse the variation of previous non-consensual orders, as the focus is on autonomy rather than variation as such.

74 Indeed, there is no statutory definition of a separation agreement, and it seems that not all agreements relating to marital breakdown will be recognised as separation agreements within the meaning of the legislation: see eg O'M v O'M [2004] 5 JIC 0502.

75 Irish divorce legislation does not provide for a ‘clean break’, but the Supreme Court has now held that, where resources permit, the court should strive for as much finality as possible under the circumstances: T v T [2002] 3 IR 334 at 385–386.

76 Mnookin contends that ‘the primary impact of the legal system is not on the small number of court contested cases, but instead on the far greater number of divorcing couples outside the courtroom who bargain in the shadow of the law’: Mnookin, RH ‘Divorce bargaining: the limits on private ordering’ in Eekelaar, J and Katz, SN (eds) The Resolution of Family Conflict: Comparative Legal Perspectives (Toronto: Butterworth & Co (Canada) Ltd, 1984) p 364Google Scholar. Legal entitlements or ‘endowments’ are therefore not only normative, but may impact on bargaining outcomes, although, as Mnookin emphasises, they are just one factor that may influence the outcome (Mnookin, p 372).

77 The only real recognition of gender equality issues is contained in the Supreme Court's emphasis on respect for home making contributions in T v T [2002] 3 IR 334, discussed in Buckley, LA ‘“Proper provision” and “property division”: partnership in Irish matrimonial property law in the wake of T v T’ (2004) 7 IJFL 8Google Scholar.

78 This contrasts with the Irish law of nullity of marriage, where the courts have taken a very broad view of the pressures that might undermine the validity of an apparent consent to marriage: see N (orse K) v K [1985] IR 733.

79 In LB v Ireland [2008] 1 IR 134, the husband's challenge to (inter alia) the constitutionality of aspects of the 1996 Act, particularly the section on proper provision, was rejected. However, the judgment focused on the constitutional provisions regarding property rights and the state's duty to protect the institution of marriage, rather than autonomy as such.

80 K v K (No. 2) [2003] IR 326.

81 O'Neill J considered that although the couple had lived apart for many years they were not ‘disconnected’, as the wife remained as primary carer for their children until she was over 50 years old. He also considered that the basis for the husband's later success was already in place by the time the marriage broke down, and was created during the marriage; the husband's career had also benefited from his wife's childcaring role.

82 YG v NG [2011] 3 IR 717.

83 Ibid, [25] (Denham CJ).

84 Ibid, [22(i)] (Denham CJ).

85 Ibid, [22(iv)] (Denham CJ).

86 Ibid, [22(i)] (Denham CJ).

87 Ibid, [22(ii)] (Denham CJ).

88 The remainder of the judgment focused on what might amount to a significant change in circumstances, and the scope of proper provision.

89 Although some judicial notice has been taken of power disparities in the English case-law post-Radmacher, Thompson notes that ‘unless fairly extreme’, these ‘do not appear to weigh heavily with the courts when considering whether a prenup should be considered unfair’ (Thompson, above n 29, p 29).

90 JC v MC (HC, 22 January 2007; Irish Times 19 February 2007; additional details in I Clissman Trends in Divorce: A Review of Recent Case Law (Law Society of Ireland CPD Seminar: ‘Divorce – Ten Years On’, Dublin, 27 February 2007).

91 Clissman, above n 90, p 69.

92 SJN v PCO'D (HC, 29 November 2006; details taken from Clissman, above n. 90, and the report of the Supreme Court appeal (SN v PO'D [2010] 1 ILRM 317)).

93 Clissman, above n 90, p 50.

94 Ibid, p 47.

95 Ibid, p 48.

96 A similar approach appears to prevail in other cases where courts comment, even briefly, on enforcing agreements. For instance, in CO'C v DO'C [2009] IEHC 248, Dunne J simply stated that ‘the courts would uphold agreements freely entered into at arms [sic] length by parties who were properly advised’.

97 See eg RG v CG [2005] IEHC 202; B v B (HC, 8 December 2005); McM v McM [2006] IEHC 451.

98 MG v MG [2000] 7 JIC 2503 (Circuit Family Court).

99 It must be noted that the Canadian provisions on varying financial provision cited by Judge Buckley (Divorce Act 1985, s 17) have no equivalent in Ireland, so that the exercise to this extent must be doubtful.

100 Willick v Willick 119 DLR 4th 405.

101 Ibid, at 438.

102 Ibid, at 442.

103 Ibid, at 460.

104 G(L) v B(G) 127 DLR 385.

105 Pelech v Pelech (1987) 38 DLR 641 at 676.

106 MG v MG [2000] 7 JIC 2503 at 1.

107 On the facts, the only ‘sufficient change’ was a significant increase in property values, and the court awarded the husband a small share of the proceeds of the family home, if it should ever be sold. The parties’ divorce, the husband's remarriage and subsequent unemployment were not deemed ‘unforeseeable’.

108 YG v NG [2011] 3 IR 717.

109 Ibid, [22(vi)] (Denham CJ).

110 Ibid, [22(v)] (Denham CJ). A relevant change in circumstances might include the impact of the economic downturn, if this has made the original orders unviable (CQ v NQ [2016] IEHC 486), though this is not to be understood as a ‘rogue's charter’ (MO'B v BO'B [2012] IEHC 621 [13] (Abbott J)).

111 Radmacher v Granatino [2011] 1 AC 534.

112 Ibid, [78].

113 Ibid, [42].

114 Ibid, [51].

115 Ibid, [175].

116 Ibid.

117 Ibid, [137].

118 Ibid.

119 In fact, G v G explicitly left the question more open than this. While the Supreme Court emphasised that the agreement should receive ‘significant’ weight, it also stressed the need to make proper provision, and the duty to consider all the circumstances carefully, including any changes in circumstances. It specifically mentioned a variety of factors (not all needs-related) that might impact on the level of provision, notwithstanding the agreement, while stating that this list was not intended to be conclusive: YG v NG [2011] 3 IR 717 [22].

120 F v F [2012] IEHC 620.

121 Ibid, [11].

122 DT v FL [2012] IEHC 612.

123 Ibid, [6].

124 Since the courts have not yet addressed the issue of prenuptial agreements, it is unclear whether the courts will evaluate the agreed provision in the light of the parties’ continuing relationship, even though the emphasis on the need for provision to be evaluated as at the date of the order should in principle allow for this.

125 F v F [2012] IEHC 620 [11]. Significantly, the autonomy of the parties was not challenged in this case, and both parties had acted upon the agreement.

126 DT v FL [2012] IEHC 612 [10].

127 Ibid.

128 These orders were partially overturned by the Court of Appeal, though no written judgment is available: T Healy, ‘Businessman must pay ex-wife €5,000 monthly maintenance and €300,000 lump sum’ (Dublin: Irish Independent, 4 December 2015).

129 For instance, in N (orse K) v K K [1985] IR 733, Finlay CJ stated that marriage required a ‘fully free exercise of the independent will of the parties’ that is not affected by ‘external pressure or influence’. The majority of the Supreme Court identified force of habit, relational influence, ignorance and trauma as factors that might combine to prevent independent decision making, even without explicit pressure.

130 Study Group, above n 3, p 9. Expert input was, however, invited.

131 Law Commission, above n 9, at para 4.29.

132 Ibid, at para 6.4.

133 Law Commission, above n 9, at para 1.34.

134 Ibid, p 66. The Study Group also recommended that prenuptial agreements should be reviewable in the event of death: ibid, p 77.

135 Note however that the procedural safeguards recommended by the Law Commission related to qualifying nuptial agreements only, and did not apply to other marital agreements.

136 Study Group, above n 3, p 85; Law Commission, above n 9, at paras 6.125, 6.142.

137 Law Commission, above n 9, at para 6.91; Study Group, above n 3, p 85 (though the Study Group reference is to ‘full’ rather than ‘material’ disclosure).

138 Study Group, above n 3, p 85; Law Commission, above n 9, at para 6.65. There are minor distinctions: the Study Group recommended that the agreement should be ‘in writing’, whereas the Law Commission considered it should be by deed (at para 6.36) and should include a specific acknowledgement by the parties that they are aware of the effects of the deed (at para 6.40).

139 The Law Commission noted the potential for relational pressure (Law Commission, above n 9, at paras 5.76, 6.162), although it ultimately failed to address the question of external or third party pressure, since disclosure and procedural safeguards are not really an answer to this: see the discussion at paras 5.28–534 of the report). Ultimately, the Law Commission concluded that the argument for certainty was stronger than argument for autonomy (Law Commission, above n 9, at para 5.35).

140 The Study Group addressed the issue of family autonomy (above n 3, p 48), but did not address the issue of relational power imbalances.

141 Study Group, above n 3, p 85.

142 Law Commission, above n 9, at para 5.84.

143 Study Group, above n 3, pp 18–19, 62.

144 Ibid.

145 Law Commission, above n 9, at paras 5.76, 6.162.

146 See however Thompson's comments on case developments since Radmacher, highlighting the high level of power disparity now apparently required for an agreement to be regarded as unfair: Thompson, above n 29, pp 27–30.

147 G v G noted that the ‘new’ or ‘changed’ needs of a spouse could be a relevant circumstance for consideration (YG v NG [2011] 3 IR 717[22]), or that improved resources might enable the meeting of a ‘different’ need (ibid, at [34]). However, in DT v FL, Abbott J considered that G v G required him to give the agreement almost decisive weight, ‘subject to the exception or exceptions indicated by the particular needs arising from the failure of the settlement to address them’ (DT v FL [2012] IEHC 612 [6]).

148 See Healy, above n 128.

149 Radmacher v Granatino [2010] UKSC 42 [81], though the reference to ‘real need’ was brief and unexplained.

150 Radmacher itself may be critiqued on this basis: see the comments of Thompson, above n 29, p 28.

151 This was noted by the Law Commission, above n 9, at paras 6.44–6.45.

152 The Study Group did not analyse this point, referring only to ‘full disclosure’ (Study Group, above n 3, p 85), but the Law Commission offered some analysis of its proposed ‘material disclosure’ requirement (Law Commission, above n 9, at paras 6.77–6.88).

153 See Buckley, above n 2, for a full discussion of this possibility.

154 Radmacher v Granatino [2011] 1 AC 534 [162].

155 See eg the comments of Henchy J (dissenting) in N (orse K) v K [1985] IR 733 at 745.

156 DB v O'R [1988] IEHC 24.

157 For a full discussion of the application of duress in the prenuptial agreement context, see Thompson, above n 29, p 109.

158 Ibid, p 115 (discussing undue influence in the prenuptial agreement context).

159 Zamet v Hyman [1961] 1 WLR 1442.

160 Ibid, at 119 and 122, citing Auchmuty, R ‘The rhetoric of equality and the problem of heterosexuality’ in Mulcahy, L and Wheeler, S (eds) Feminist Perspectives on Contract Law (London: Routledge, 2005) p 51Google Scholar.

161 Capper, D, ‘The unconscionable bargain in the common law world’ (2010) 126 LQR 403Google Scholar.

162 For instance, in McGonigle v Black (HC Circuit Appeal, 14 November 1988), Barr J noted that the vendor had been disadvantaged by ‘a combination of bereavement, inability to cope, loneliness, alcoholism and ill-health’, which made him vulnerable to manipulation.

163 For a full discussion of the Irish law on unconscionable transactions, see Biehler, H, Equity and the Law of Trusts in Ireland (Dublin: Roundhall, 6th ed, 2016) p 818Google Scholar.

164 Thompson, above n 29, p 128.

165 Bryan, PE ‘The coercion of women in divorce settlement negotiations’ (1996–1997) 74 Denv UL Rev 931 at 933Google Scholar; Thompson, above n 29, p 127.

166 For example, the approach to autonomy in the nullity context is highly relational, as noted above.

167 The Law Commission recommended that the presumption of undue influence should not apply to qualifying nuptial agreements: Law Commission, above n 9, at para 6.29. The Law Commission noted that no such presumption exists in any event as between spouses but feared that claims of undue influence might in any event become a ‘disproportionate obstacle to … enforceability’ (Law Commission, above n 9, at para 6.21).

168 Although Ireland and Canada are both common law jurisdictions with a similar legal heritage, there are some significant structural differences. Unlike Ireland, Canada distinguishes between marital property and spousal support, and the legislative and jurisdictional aspects of each are separate, due to Canada's federal structure. Marital property is dealt with at provincial level, usually through equal sharing regimes, while spousal support on divorce is dealt with at federal level. This has consequences for autonomy (since the default position of equal sharing in relation to property confers a significant bargaining endowment) and for the courts’ willingness to uphold family property agreements (since the right to spousal support still applies). The power to self-regulate on family property issues makes unconscionability a key doctrine in the Canadian context, though it has played a much less significant role to date in Irish family law. For a more detailed discussion of the Canadian family property system, see Buckley, above n 15.

169 Family Law Act, SBC 2011 (2011 Act), c 25.

170 R Treloar and S Boyd ‘Family law reform in (neoliberal) context: British Columbia's new Family Law Act’ (2014) Int'l J L Pol'y & Fam 77.

171 2011 Act, s 93(a).

172 Rick v Brandsema [2009] 1 SCR 295, 2009 SCC 10.

173 Ibid, at para 63.

174 Ibid, at para 47.

175 For a critique of this view, see Leckey, R ‘Common law of the family – reflections on Rick v Brandsema’ (2009) 25 CJFL 257Google Scholar; Rogerson, C ‘Spousal support agreements and the legacy of Miglin’ (2012) 31 Can Fam LQ 13 at 28, 30, 32Google Scholar.

176 Rick v Brandsema [2009] 1 SCR 295, 2009 SCC 10 [1].

177 Ibid.

178 Ibid, [61].

179 Ibid, [60].

180 The Study Group recommended that prenups be listed in a separate section, to promote transparency: Study Group, above n 3, pp 71, 75.

181 Section 93(5) in fact represents a significant departure from previous BC law, which allowed the court to intervene based on a broader consideration of fairness (Family Relations Act, RSBC 1996, c 128, s 65, now repealed). Furthermore, the new law requires ‘significant’ unfairness, setting quite a high threshold for intervention. Again, this emphasises the legislative desire to increase the ability of parties to rely on agreements, and restrain too ready a judicial intervention. For a further discussion of the 2011 Act, see A Laing and BC McCutcheon ‘Marriage and cohabitation agreements: drafting and setting aside agreements under the FLA’ Continuing Legal Education Society of British Columbia, January 2013, available at https://www.cle.bc.ca/PracticePoints/FAM/13-MarriageandCohabitation.pdf (last accessed 7 November 2016).

182 A separation agreement made many years ago may no longer provide proper provision at the time of divorce (see K v K (No. 2) [2003] IR 326, but also consider the effects of YG v NG [2011] 3 IR 717 in this regard). Equally, however, an agreement that has been relied on by both parties for many years may not readily be disturbed, particularly where there is a ‘full and final settlement’ clause: see eg WA v MA [2005] 1 IR 1.

183 See WA v MA [2005] 1 IR 1 and the previous discussion of SJN v PCOD (HC, 29 November 2006).

184 It is in fact doubtful whether a change of this kind would be sufficient grounds for variation under existing Irish case-law: see the previous discussion of MG v MG [2000] 7 JIC 2503 and G v G [2011] IESC 40.

185 For a discussion of what s 93(5) might mean in practice, see Laing and McCutcheon, above n 185, at paras 4.1.12–4.1.13.

186 Law Commission, above n 9, at paras 1.25, 5.82–5.83.

187 Family Justice Council, Guidance on ‘Financial Needs’ on Divorce (June 2016), available at: https://www.judiciary.gov.uk/wp-content/uploads/2013/04/guidance-on-financial-needs-on-divorce-june-2016-2.pdf (last accessed 14 April 2017).

188 Art 41.3.2.iii of the Irish Constitution (emphasis added).

189 It is presumably for this reason that the current legislation takes the form it does: a non-exhaustive list of factors for consideration by the court, which does not fetter the court's discretion. The only explicit fetter on judicial discretion is the stipulation that the court shall make no order unless satisfied that it would be in the interests of justice to do so: Family Law Act 1995, s 16(5), and 1996 Act, s 20(5).

190 Miglin v Miglin [2003] 1 SCR 303, 2003 SCC 24.

191 See Buckley, above n 2.