Prenuptial agreements or prenups are a regular thing in Hollywood and while 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.
Prenups can be a positive thing if they are done in a friendly, cooperative way. It's perhaps not the most romantic way to start a marriage, but for those who have assets, inheritances, or already been married and had an expensive divorce, a prenup 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 prenup has been entered into.
What is a prenup?
Simply, a prenuptial agreement 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 prenups prior to the marriage means the marriage is destined to fail should be dispelled.
Prenups 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.
Prenups 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 prenup for financial planning on death. Our top legal tips before saying I do may also come in handy here.
Are prenuptial agreements binding?
Prenups 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 prenup will, generally, be held to be enforceable and legally binding. The key tests are:
- The prenup 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 prenup discussion at an early stage. The closer to the wedding day it gets, the more concern there may be about leaving the prenup exposed to challenge in the future, for example, on the grounds of one party feeling pressured into signing the agreement.
Are prenuptial agreements a good idea?
It is a misguided belief that prenups are just for the rich and famous. Prenups 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.
Prenups can include as many, or as few, assets as the couple wish. They should always be bespoke contracts for the parties signing them. Prenups 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.
Prenups can be particularly important for people who stand to inherit a family business or wealth, therefore, whether a prenup 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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.