Prenuptial & postnuptial agreement solicitors

A prenuptial agreement, or “prenup” is a legally binding legal document entered into before marriage outlining how assets, property, and finances will be divided in the event of a divorce or separation. Often used to protect business assets, inherited wealth, or property owned prior to marriage, these agreements must be freely entered into without coercion or undue influence.

Prenuptial agreements are a type of marital agreement designed to protect individuals’ interests. Also known as a nuptial agreement, they have been recognised following reports the Law Commission published on the importance of nuptial agreements.

Prenuptial agreements can benefit anyone planning to marry but are particularly useful for individuals with significant assets.

A post nuptial agreement, commonly referred to as a “postnup”, serves a similar purpose to a prenuptial agreement but is signed after the marriage has taken place. It defines how marital property and financial responsibilities will be handled should the marital relationship break down.

Postnuptial agreements are ideal for updating arrangements based on changes in financial circumstances or newly acquired assets.

A pre-civil partnership agreement, also known as a pre-registration agreement, is made before entering a civil partnership. It determines how assets and finances will be managed if the partnership is dissolved. Like prenuptial agreements, the aim is to promote financial transparency and help protect certain assets from being divided during a potential separation.

A cohabitation agreement is a legal document designed for couples who live together but are not married or in a civil partnership. Similar to marital agreements, it provides financial clarity and protection by setting out how property, bank accounts, and other assets will be handled if the relationship ends. It can address issues like financial support, child custody, and property division.

Relationship agreements can cover a broad range of financial matters. Common inclusions are property owned prior to the relationship, savings, investments, business assets, and other assets acquired individually. These agreements often define separate property, assets that will remain separate from the marital property pool in the event of a divorce settlement.

Typically, an agreement will include details such as the parties’ names, addresses, and the date of marriage or partnership. It will also specify what each party brings into the relationship and outline their respective party’s financial situation and other party’s financial situation. A statement signed by both parties confirming fair disclosure helps strengthen the document.

Well drafted agreements, supported by fair disclosure and independent legal advice, are generally regarded as contractually valid and can carry significant weight in family court proceedings.

Prenuptial agreements are used to protect assets obtained, by one partner, before marriage. Properly drafted pre nuptial agreements and post nuptial agreements can provide substantial safeguards. It is wise to take other precautions such as keeping pre-marital assets separate, even after marriage, by using separate bank accounts.

If you live with your partner, and not yet ready to marry or enter a civil partnership, you may benefit from a cohabitation agreement. Also known as a “no-nup” or living together agreement, this is a legal document for unmarried couples living together.

There is no statutory timescale in Scots law, but it’s strongly recommended that a prenuptial agreement be signed at least 28 days before the wedding. Signing too close to the wedding could raise concerns about coercion or undue influence, making the agreement vulnerable to challenge. If there isn’t enough time, consider a postnuptial agreement instead.

Prenuptial agreements are legally binding in Scotland when properly drafted. Each party should seek independent legal advice. Typically, the agreement is signed in the presence of a solicitor who ensures both parties understand their rights and obligations.

Prenuptial agreements can be challenged if unfair or signed under coercion. Courts have court’s discretion to vary or overturn agreements if entered without fair financial disclosure or independent legal advice.

Generally, Scottish courts respect prenuptial agreements and regard them as contractually valid, especially when drafted with fair financial disclosure. While successful challenges are uncommon, obtaining independent legal advice helps ensure the agreement withstands legal scrutiny.

A prenuptial agreement becomes enforceable once registered in the Books of Council and Session in Edinburgh, which is a public record. However, couples can initially avoid registration to maintain privacy, registering it later if enforcement becomes necessary.

Whilst parties are free to enter a contract in the terms they see fit, it is important to seek legal advice when considering ring-fencing future earnings/preventing spousal aliment. It could be argued that this is not fair and reasonable and therefore open to challenge in the future. Advice should be sought on the existing legislation narrating how the financial matters of a marriage are resolved as it is important that the prenuptial agreement does not significantly depart from those terms.

Prenups can narrate the parties’ intentions in relation to the childcare arrangements for any children of the relationship (and those from a previous relationship) in the event of separation. However, it is important to be aware that they would not be enforceable. In the event of a dispute, regarding the childcare arrangements at the point of separation, consideration would be given to the relevant legislation in respect of children. The best interests of the child and the welfare of the child is the paramount consideration to be considered in resolving disputes about children in the event of a divorce. If you have children from previous relationships, or a prior marriage, a prenuptial agreement can legally protect them.

Prenuptial agreements typically focus on relationship breakdown, but the terms may also remain upon a spouse’s death. If you wish to include provisions applicable to both separation and death, it is important to ensure these terms are considered fair and reasonable to withstand potential challenges. Couples are advised to draft or update a will alongside their prenup to clearly define inheritance, protect assets, and safeguard the surviving spouse’s rights. Regularly reviewing both documents helps ensure they remain accurate and reflective of any changes in financial circumstances or personal situations.

The party instructing the solicitor to draft the prenuptial agreement would usually pay the legal fee. Both parties should ensure they seek separate, independent legal advice and would usually be responsible for their financial arrangements.

The belief that getting a prenuptial agreement increases the likelihood of divorce is a common misconception. Prenuptial agreements are not a sign of doubt in the marriage’s longevity. Many married couples have prenuptial agreements to protect their assets and to avoid protracted court proceedings if the relationship ends in divorce.

A prenuptial agreement typically lasts for the duration of a couple’s marriage unless a specified expiration date, known as a “sunset clause,” is included. Without such a clause, the contract entered is assumed to be in effect indefinitely. It is advisable to periodically revise a prenuptial agreement to ensure it remains current with the couple’s assets, financial circumstances, property owned or joint assets. An outdated agreement that doesn’t consider changed circumstances, like the birth of children or illness, may lead to financial issues and might not be upheld by the court.

Yes, relationship agreements such as pre and post nuptial agreements are legally binding in Scotland when they meet certain legal requirements. Under Scots law, these agreements are generally treated as contracts, provided they are entered into freely by both parties, with fair financial disclosure and without undue influence. These legally binding agreements typically outline the division of marital assets and financial responsibilities in the event of separation or divorce.

This approach differs from other parts of the UK, such as England and Wales, where nuptial agreements are not automatically legally binding and are instead subject to the discretion of the court. In Scotland, as long as the agreement is contractually valid and not unfair or unreasonable at the time it was entered into, courts are more likely to uphold its terms.

Obtaining independent legal advice is essential to ensure your agreement is legally sound and reduces the risk of it being successfully challenged.