During the summer wedding season, as a family lawyer, it can feel a little as if you are the Grim Reaper: in attendance at the happy day as the dreaded question is asked: “What kind of lawyer are you?”
While many will associate family law with unpleasant divorces and nasty, expensive, court battles, there is advance matrimonial planning which a family law solicitor can help with. This planning allows couples at the outset of their marriage to prepare, just in case there is a separation later. It can help to discuss these things frankly and consider putting a pre-nuptial agreement (“pre-nup”) in place. Indeed, many cases may not have had their nasty, expensive outcome had a pre-nup been entered into.
What are pre-nups?
Simply, a pre-nup is a contract between couples made in contemplation of marriage. It can be seen by some as difficult to raise, particularly during the hustle, bustle and excitement of planning a wedding. Admittedly, it is not the most romantic of topics, however, any notion that the discussion of pre-nups prior to the marriage being entered into means the marriage is destined to fail should be dispelled.
Pre-nups can be viewed in a similar light to insurance policies. Do you really want to pay every month to cover you for an incident or event you do not want to happen, or is unlikely to happen? No; but should that event or incident happen, you do want to ensure the necessary protection is in place to allow you to minimise your personal and financial loss.
Pre-nups are contracts used to protect certain assets, or make specific provision in the event of their marriage coming to an end which otherwise may become matrimonial property. Essentially, the future spouses wish to take control of how divorce may affect them, financially or otherwise, at an early stage. They can also make express provision within the terms of their pre-nup for financial planning on death and for capacity issues.
Do pre-nups work?
Pre-nups are treated differently throughout the world. It is important you advise your solicitor if you hold property abroad or if you intend to relocate during your marriage.
The position in Scotland is that a properly prepared and validly executed pre-nup will, generally, be held to be enforceable and legally binding. The key tests are: the pre-nup was entered into freely and willingly; its terms were fair and reasonable in all the circumstances at the time it was entered into; and both parties had the opportunity to take independent legal advice prior to signing.
We would always recommend having the pre-nup discussion at an early stage. The closer to the wedding day it gets, the more concern there may be about leaving the pre-nup exposed to challenge in the future, for example, on the grounds of one party being pressured into signing the agreement.
Who needs pre-nups?
It is a misguided belief that pre-nups are just for the rich and famous. Pre-nups are becoming more and more popular in Scotland, particularly where people are marrying at a later stage in life, or they are, perhaps, remarrying.
Pre-nups can include as many, or as few, assets as the couple wish. They should always be bespoke contracts for the parties signing them. Pre-nups are appropriate for any person looking to ring-fence specific assets, personal or business, prior to getting married or prior to entering into a civil partnership.
Pre-nups can be particularly important for people who stand to inherit dynastic wealth, therefore, whether a pre-nup is required in advance of marriage should, in some circumstances, also be part of a wider family discussion.