How to write a prenuptial agreement?

Obtaining a prenuptial agreement is not exclusive to marriages and functions in the same way for civil partnerships.

Individuals in a civil partnership also have the option to secure a prenuptial agreement, allowing them to establish clear terms and provisions related to asset division and financial matters in the event of a dissolution of the partnership. This legal document provides a structured and agreed-upon framework, offering both parties a sense of security and clarity regarding any financial issues.

A prenuptial agreement is a  sensible way to reduce conflict in the event of separation and legal expenses in resolving the financial matters of divorce. It can be used where a party brings significant wealth to a marriage but can also be used by any party wishing to protect an asset acquired prior to marriage, inheritance or gifts from third parties.

A prenuptial agreement can also be a valuable tool in protecting future inheritance one partner may receive, or to protect inheritance a child from a previous relationship may inherit.

A prenuptial agreement can assist parties prior to entering into a marriage to communicate about their financial circumstances and encourages transparency. It can be tailored to suit individual circumstances subject to the parties ensuring that they seek specialist legal advice on its terms.

It is important to bear in mind that a prenuptial agreement can only be entered into before marriage and where both parties have had sufficient time to consider its terms. It is open to parties to enter into a post-nuptial agreement and is a sensible way to ring fence assets after marriage, although there is an element of good faith required by the parties as they have already married by the time of its signature.

A post nuptial agreement can also be considered by parties at a much later stage in a marriage in the event of a material change in the financial circumstances of a party to the marriage.

The expense associated with a prenuptial agreement varies widely, contingent upon its complexity. For example, if the asset framework is intricate or if international factors come into play, this can have implications on costs.

Altering prenuptial agreements after marriage is not possible. However, a postnuptial agreement is a viable option for any significant changes.

If circumstances change and the terms of your prenup become outdated, a postnuptial agreement can serve as a suitable replacement. Reasons for opting for a postnup may include the birth of children not addressed in the initial prenup or significant shifts in one spouse’s financial situation.

To ensure the continued relevance and enforceability of your agreement, it is prudent to periodically review your prenup during the marriage. Our experts in post-nuptial agreements are available to provide guidance on crafting a postnup to supersede a prenuptial agreement after marriage.

In Scotland, properly crafted prenuptial agreements generally possess enforceability and legally binding status. This encompasses the crucial aspect of ensuring that neither party experiences undue pressure to agree to a prenuptial arrangement and both have time to consider the drafted agreement prior to the marriage.

It is very important that specialist legal advice is sought when considering the terms of a prenuptial agreement. Both parties should ensure that they have had the benefit of separate and independent legal advice.

This will ensure there is limited scope for the agreement to be challenged in the future. Where an agreement has been properly drafted and meets certain requirements when it is entered into, it is very likely to be upheld in the event it were to be challenged in a Scottish Court, which will avoid protracted court proceedings in the event of a divorce.

It is important that there is no pressure on the parties to sign the agreement and it is not signed too close to the wedding. The terms of the agreement must be fair and reasonable when it was entered into and should not depart significantly from the legislative framework which sets out what is to happen in the event of separation.

The agreement should discuss the parties’ financial arrangements ranging from business assets, property owned and any other assets separate to the marriage.

A prenuptial agreement will define its duration.  The agreement may include clauses specifying a future termination date, such as an agreement only being applicable for the first 10 years of marriage.