Pre-nuptial agreements or pre-nups are a regular thing in Hollywood and whilst you may not have as much at stake as high profile celebrity couples, this area of family law can give peace of mind with some advanced wedding planning.
Pre-nups can be a positive thing if they are done in a friendly, cooperative way. Perhaps not the most romantic way to start a marriage with, but for those who have already been married and had a bruising divorce, a pre-nup can be very valuable. A family law solicitor can help couples, at the outset of their marriage, to prepare just in case there is a separation later. A family lawyer can also help to discuss these things frankly. Indeed, many divorces may not have a challenging and expensive outcome because a pre-nup has been entered into.
What are pre-nups?
Simply, a pre-nup is a contract between a couple made before a marriage. It can be seen by some as a difficult topic to raise, particularly during the excitement of planning a wedding. Admittedly, it is probably far from the minds of couples looking to make their first commitment together, however, any notion that the discussion of pre-nups prior to the marriage 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 provisions in the event of the marriage coming to an end, which otherwise may become part of the matrimonial pot for division. Essentially, the future spouses 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. Our top legal tips before saying I do may also come in handy here.
Are pre-nups legally binding?
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
- 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 feeling 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. And when a key comes before a ring couples may want to make a pre-agreement about any property assets.
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 a family business or wealth, therefore, whether a pre-nup is required in advance of marriage should, in some circumstances, also be part of a wider family discussion.
And if a couple decides marriage isn’t for them, a Living Together Agreement may be a better option.