There is a growing trend for people in their 40's and
50's to seek a pre-nup before they marry.
Unlike the typical pre-nup for a first marriage, this will not
be about one party only wanting to preserve their wealth, but
instead both husband and wife-to-be are keen to have a silver
Why do people want a silver pre-nup?
Both parties are likely to come in to the second marriage with
property of their own, children from a previous marriage with a
much greater awareness of the costs and emotional drain of a
disputed divorce action.
By entering into a silver pre-nup they can protect the property
they bring in to the marriage with them, not only from divorce, but
also the laws of inheritance – ensuring that their estate
upon death is inherited by their own children and not by their
What should a silver pre-nup provide for?
The normal Scottish approach to pre-nuptial agreements is to
keep it simple and aim to protect non-matrimonial property, such as
pre-marriage funds which have been brought in to a marriage.
In a silver pre-nup we will usually ring-fence pre-marital
assets and allow for their value to be traced back, even if they
had been invested in a joint project. This way, both spouses can
protect the wealth they brought with them into the marriage, even
if that wealth has been mixed with the other spouse's property,
such as in the purchase of a joint matrimonial home.
The other thing a silver pre-nup usually provides for is a
mutual discharge of rights of inheritance. Scots law of inheritance
provides for certain rights on inheritance for a spouse, even if no
provision has been made for him or her in the deceased's will.
By discharging these rights of inheritance we ensure that each
spouse can enjoy total control over the fate of their estate on
death – and if they want to leave their entire estate to the
children, they can, without any claim from their husband or
What are the limitations of a typical silver pre-nup?
Whilst silver pre-nups are useful for protecting capital assets,
they cannot be used to waive (or even limit) claims for maintenance
in the event of a subsequent divorce. This is because a pre-nuptial
agreement has to be fair and reasonable at the time it is entered
into. Scots law does not consider it either fair or reasonable to
place any restrictions on a spouse's rights to claim
maintenance upon separation.
Although it is competent to provide in a pre-nuptial agreement
for a party to trace back pre-marital assets which have become
matrimonial property, it is much harder to be given credit for
pre-marriage assets which are no longer there in any form because
they have been spent on things like holidays or failed investments.
Both parties should therefore be careful to ensure that income is
used for spending on holidays etc and that whatever happens to
pre-marriage assets during the marriage, they should still be
clearly identifiable in the event of separation.
While a request for a divorce may come as a shock, most people come to the realisation that if their spouse considers that the marriage is over then, perhaps after attending marriage counselling, there is no point fighting the inevitable.
The highly unusual decision in the recent case of Owens v Owens, has served as a reminder of the Respondent's right to defend a Petition for divorce, and the Court's power to reject a Petition based on unreasonable behaviour...
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