The starting point in Scots Law is that pre-nuptial agreements are generally accepted as being “legally binding” (or, more accurately “enforceable by the court”).
The BBC and a number of newspapers ran a story yesterday on the Law Commission’s proposals to make pre- and post-nuptial agreements legally binding in England and Wales. At present, the legal status of pre-nuptial agreements in England and Wales is uncertain, which can discourage couples from entering into them.
In Scotland, we are one step ahead. The starting point in Scots Law is that pre-nuptial agreements are generally accepted as being “legally binding” (or, more accurately, “enforceable by the court”). This has been the understanding for many years, although it has not yet been tested in court. They are similar to contracts and, although there are some specific exceptions for pre-nuptial agreements, if a person freely and willingly enters into a contract then they are bound by it. An important, additional consideration for a prenuptial agreement is that it must be fair and reasonable at the time that you enter into it.
Pre-nuptial agreements are recommended for people who, for whatever reason, wish to ring-fence some of their assets prior to getting married or entering into a civil partnership. When most people think of “pre-nups” they envisage Hollywood stars protecting their millions from their future spouse. However, pre-nuptial agreements are not just for the super-rich and may be advisable for individuals of more modest means.
If you own a business or properties you may be interested in a pre-nuptial agreement. Equally, you might have savings or investments which you would like to protect. You may also wish to consider a pre-nuptial agreement if you are entering into a second marriage or civil partnership.
It is important that you and your partner take legal advice prior to entering into a pre-nuptial agreement. The agreement must be fair and reasonable at the time that it is entered into. We understand that it’s not necessarily the most romantic conversation to have with your partner but having an open and honest conversation at an early stage in your relationship will mean that it’s dealt with and you can enjoy those honeymoon days worry-free! You should make sure that you allow sufficient time prior to the wedding or civil partnership to get all of the details ironed out.
Our preferred way of arranging pre-nuptial agreements is through collaborative marriage planning, where you and your partner will sit down together with your solicitors for an open and amicable discussion to create the best agreement for you.
BTO Family Law experts are dedicated family lawyers specialising in helping you with divorce, separation and any aspect of family law, in Edinburgh and Glasgow, Scotland.