Pre-nuptial agreements (or more commonly referred to as a ‘pre-nups’) have become more popular over the years.  They are no longer considered to be documents used by only the wealthy or by celebrity couples.  More people now are looking to regulate their financial affairs before entering into marriage.

A pre-nuptial agreement is signed before marriage and enables a couple to decide how they wish their assets to be divided should they later decide to separate or divorce.  Although it may not be considered the most romantic pre marriage matter to deal with, it is sensible to consider entering into such an agreement to regulate your financial affairs particularly when, going in to the marriage, you own property or hold savings, or when there are gifts from family members or inherited funds to consider.  Whilst you may not want to contemplate the scenario of separating from your intended spouse, preparing for the possibility will give you a clear picture of what to expect if unfortunately that event were to happen.  The pre-nuptial agreement might never need to be pulled out of the drawer it is stored in, but it is sensible to plan and have certainty in the event of separation or divorce occurring.

A pre-nuptial agreement is a contract between both parties covering varying arrangements, such as:

• protection of assets owned at the time of marriage, and how these should be divided in the event of separation or divorce
• regulation of income from pre-existing assets
• sharing or otherwise of gifts from third parties
• how inherited funds are dealt with
• ownership of property if contributions are made unequally
• pension arrangements

There is no “one style fits all” when it comes to a pre-nuptial agreement.  Each agreement is different and bespoke to individual circumstances.  A pre-nup allows parties to enter into a marriage with clear financial planning.

There can be a misconception that prenuptial agreements are not enforceable in Scotland.  This is not correct and generally the Courts will respect the wishes made by parties in their agreement and tend not to interfere unless there is good reason to do so, such as the agreement plainly being unfair and unreasonable.  If the agreement has been entered into with both parties being of sound mind and not having been forced or unduly coerced, the contract should be deemed as valid, particularly if both spouses had the benefit if independent legal advice. This is important as each party should have his/her own solicitor, and one lawyer should not act for both.

If you are considering a pre-nup, it is important that you speak to an experienced solicitor who can guide and advise you through the process, taking account of your individual needs and requirements.  Our team of experienced solicitors will be happy to asset you and provide clear advice to help you in every step of the way.

For more information or advice, please contact our team.