Pre-nuptial & post-nuptial agreement solicitors
A pre-nuptial & post-nuptial agreement can be a sensible way of estate planning to protect you, your future spouse, and your family in the event of unforeseen circumstances.
Pre-nuptial and post-nuptial agreements in Scotland
When considering entering marriage or a Civil Partnership, contemplating what may happen in the event of a separation is unlikely to be top of your agenda. Often overlooked, a Prenuptial or Postnuptial Agreement can be a sensible way of estate planning to protect you, your future spouse, and your family in the event of unforeseen circumstances.
It should be viewed similarly to that of creating a Will. Such agreements ensure that your wishes are protected, and significant assets divided how in line with the terms of the agreement.
A Prenup ensures future certainty and security for both you and your partner. Such agreements can offer an inexpensive method of saving thousands of pounds in the unfortunate event of a separation or divorce. A Post-nuptial agreement has the same effect as a Pre-Nup, however, it is entered into after marriage as opposed to before.
Our Family Law team of solicitors are experienced in handling Prenups and Post-nups and can serve you throughout Scotland with offices in Glasgow, Edinburgh, Inverness, the Highlands, Elgin and Shetland.
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Common questions about prenuptial agreements
What is a prenuptial agreement and how does it work?
A prenuptial agreement is a legally binding, written agreement, entered between two parties prior to marriage or Civil Partnership. The contract must be freely entered with undue pressure. It sets out parties’ financial terms and conditions on what they wish to happen to their assets in the event of a relationship breakdown to ensure they keep their assets separate.
What is included in a prenuptial agreement?
Prenuptial agreements are very flexible in terms of the extent of the assets which can be ring-fenced and protected. Typical assets may include properties, savings, investments, business interests or motor vehicles. The extent of assets is not limited and can be as extensive as the parties feel comfortable with.
A prenuptial agreement should narrate basic information such as the parties’ names, addresses and the date of the forthcoming marriage. It should also narrate what assets each party is bringing to the marriage. The prenuptial agreement will narrate what each party considers to be their ‘separate property’ and should be ring-fenced in the event of a future separation and divorce.
How long before a wedding can you sign a prenuptial agreement?
There is no set timescale for when you and your partner can sign a prenuptial agreement before a wedding. However, it is important that a prenuptial agreement is not signed too close to a wedding to avoid it being challenged as not being fair and reasonable.
How to protect your assets before marriage?
Prenuptial agreements are not a new concept in Scotland. Ante-nuptial marriage contracts have been used in Scotland for hundreds of years. Premarital agreements are used to protect assets obtained, by one partner, before marriage. For individuals entering into a second marriage, properly drafted prenups can provide substantial safeguards.
Where can I sign a prenuptial agreement?
A prenuptial agreement can be signed in the presence of a solicitor or third party. It is common that a prenuptial agreement is signed in the presence of an instructed solicitor to ensure each parties’ legal rights.
How to write a prenuptial agreement?
A prenuptial agreement can be signed in the presence of a third party rather than a lawyer. However, we would not recommend parties attempting to draft their own prenuptial agreement as specialist legal advice is required to ensure its accuracy, validity and enforceability particularly as they could be open to challenge as not being considered fair or reasonable in court.
Are prenuptial agreements legally binding?
Yes, in Scotland such agreements are legally enforceable and binding. However, great importance should be given in relation to the preparation of the prenuptial agreement to avoid the risk of an uncertainty, misinterpretation or any financial consequences.
A prenuptial agreement can be challenged any time up until divorce on the basis that it is not fair and reasonable. It is important to seek legal advice in the drafting of a prenuptial agreement to minimise any risk of the agreement being challenged as not being fair and reasonable. If a prenuptial agreement was challenged as not being fair and reasonable, the Court will consider all the circumstances leading up to the point the Agreement is signed, including the nature and quality of legal advice.
Can a prenuptial agreement be challenged?
It is possible to challenge the terms of an Agreement if it can be shown that it was not fair or reasonable at the time it was entered into or whereby one party has been forced or coerced into entering the agreement. Where one party has not been afforded an opportunity to seek independent legal advice on the agreement prior to entering it, this also risks the agreement being challenged in the future. In situations where a Minute of Agreement is challengeable, it is possible for a court to vary the terms of the agreement or reduce it (overturn it).
Will a prenup hold up in court?
A Court will generally consider that parties are free to enter into a contract of this nature without the Court interfering with the terms of the contract. Successful challenges to prenuptial agreements are rare. However, it is important to seek legal advice to be aware of the principles a court will consider when faced with a challenge of the terms of a prenuptial agreement.
Are prenuptial agreements a public record?
The prenuptial agreement must be registered at the Books of Council and Session in Edinburgh before it can become enforceable. The Books of Council and Session is a public record. It is possible to avoid registration of the prenuptial agreement to protect the parties’ privacy. The prenuptial agreement could be registered at a future point where consideration requires to be given to enforcement.
Can a prenup protect future earnings?
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.
Can a prenup include child custody?
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 taken into account in resolving disputes about children upon divorce. If you have children from previous relationships, or a prior marriage, a prenuptial agreement can legally protect them.
What happens with a prenup if one spouse dies?
Prenuptial agreements usually only cover what happens in the event of a relationship breakdown. It is important to seek legal advice in the drafting of a prenuptial agreement. If a party wishes to include what happens in the event of both separation and death of one partner, consideration should be given to any potential challenge of the agreement as not being fair and reasonable.
Who pays for a prenuptial agreement?
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.
How long does a prenuptial agreement last?
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.
Do prenuptial agreements increase the likelihood of divorce?
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.
Can a prenup be signed after marriage?
No. A prenuptial agreement must be signed before marriage by the parties entered. It is important that the prenuptial agreement is not entered too close to the date of the marriage as this is one factor which a court will consider should it be challenged as not being fair and reasonable in the circumstances prevailing. However, it is possible for parties to enter into an agreement after marriage known as a post-nuptial agreement.
What is a postnuptial agreement and how does it work?
Postnuptial agreements are a contract between married couples or civil partners that governs the division of their assets should they separate. Unlike prenuptial agreements, which are established before marriage, postnuptial agreements are created after the marriage has taken place. These agreements can enhance the stability of marital and family relationships by providing clarity and openness. In Scotland, postnuptial agreements have been a customary part of the legal landscape for centuries, and Scottish law permits couples to form these “marriage contracts.” If both parties enter a postnup agreement with informed consent, free from undue influence or coercion, the agreement will be legally binding.
Which is better prenup or postnup?
The advantage of a prenuptial agreement is that the terms of the agreement have been reached before the parties’ marriage and would prevent entering protracted court proceedings later, should the marriage end. Post-nuptial agreements, while treated in the same way legally as a prenup, could be argued to be reliant on the good faith of the parties given they are already married by the time it is signed.
Can prenuptial agreements be used for a Civil Partnership?
Yes, the key distinction is that a pre-civil partnership agreement, also called a pre-registration agreement, is the equivalent of a prenuptial agreement for civil partnerships. These agreements operate similarly, encompassing similar content and legal enforceability criteria in court and is still a sensible way to ring fence assets in the event of separation from your partner.
Should I get a prenuptial agreement or a cohabitation agreement?
A prenuptial agreement is a legally binding document designed for parties prior to marriage. It outlines decisions about asset division, property, children, and other important matters in case of divorce, offering an alternative to default entitlements set out in the event the marriage breaks.
On the other hand, a cohabitation agreement is a legal document for couples who live together but are not married. It provides similar protections to married couples, specifying what happens to assets, property, children, and more if the relationship ends. Cohabitation agreements are for unmarried couples, while prenuptial agreements are for those about to get married.
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