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Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10115
Experience:  Barrister 17 years experience
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My elderly father is to marry again and has asked his fiancée

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My elderly father is to marry again and has asked his fiancée to sign a deed of waiver of her right to the family home where they both live. He has told his daughter that he wishes to leave the family home to her. How legally binding is this deed of waiver and my fathers new wife contest this at any stage in the future.

Buachaill : 1. YOur father needs to get a comprehensive pre-nuptial agreement put in place and not merely a waiver in relation to one asset, as this will not per se be binding in the event of a divorce if provision is not made for his future wife. Following the decision in Radmacher by the Supreme court, English courts will now apply pre-nuptial agreements if they are drafted to take into account future eventualities and if they make provision for the wife, judged as of the outset of the marriage, where consent to this course of action is given by the wife. Essentially, the situation must not arise where giving the house to your father's daughter causes injustice. So a comprehensive pre nuptial agreement should be entered into and not merely a waiver in relation to one asset. In that way the pre nuptial agreement will be binding and provision can be made for giving the house to his daughter.
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Customer: You speak of pre nuptual agreements in enlish law Is this waiver legally binding in Irish law
Buachaill : 2. There is no way in which this waiver is legally binding in Irish law. I mention the English courts decision in Radmacher as Irish courts very often follow English precedents. Whilst a pre nuptial agreement is not binding in Irish law, courts will have regard to it when dividing up the assets. It is evidence of the parties intention as of the date of entering into marriage. Ultimately, the rule is that "proper provision" has to be made for a spouse upon divorce, or upon death the wife is automatically entitled to one half of the assets where there is no will and one third of the assets of the husband, where there is a will. You need to realise that there is no way out of these rules as they are written in stone. Any waiver is not valid in relation to one specific asset such as a house.
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