Prenuptial Agreement in Scotland

A Prenuptial Agreement is a written contract signed by both parties that allows a couple to agree what happens to their finances and assets if, for example, they separate or divorce or if one of them dies. 

All sorts of arrangements can be included in a Prenuptial Agreement, such as:

• Protection of both parties’ existing assets (often referred to as ‘ring-fencing assets’)
• Setting out how other assets will be divided in the event of a future separation or divorce or dissolution rather than them being divided in accordance with the terms of The Family Law (Scotland) Act 1985, which can have unexpected results
• Agreeing the level of financial support to be paid after separation
• Arranging pension provision for stay-at-home spouses

Some couples might want the terms of their agreement to closely reflect the current law applying to married couples on divorce or death. Other couples may have completely different views about what should happen in those circumstances. What is included in the agreement is up to the couple, with sometimes more unusual provisions, such as which spouse has custody of the family dog.

Pre-nups are usually drafted so that they remain in force indefinitely. They can also be written in such a way that they cease to have effect after a certain number of years or when there’s an event such as the birth of a child. However, such ‘sunset clauses’ are not always that effective and can result in one of the couple just waiting until the necessary number of years have gone by before separating so rendering the Prenuptial Agreement void.

If you feel that you need a Prenuptial Agreement, it is sensible to mention it early on in your relationship and to try to make sure it is signed well in advance of the wedding. It is recommended that both parties should obtain independent legal advice before signing an agreement.

You also have the option to enter into a post-nuptial agreement after you are married, although there is a risk that if you wait until then, your new spouse may not want to sign.

A Prenuptial Agreement gives both parties certainty and clarity on what will happen in the event of separation or divorce. 

Such agreements are not just for the very wealthy. They can be particularly beneficial for couples marrying later in life or marrying for the second time or to protect inherited or gifted assets, for example where one spouse’s parents have gifted a substantial deposit towards the purchase of the marital home.

The courts will recognise a Prenuptial Agreement if it was fair and reasonable at the time it was entered into. Both parties must have had the benefit of separate legal advice at the time the agreement was entered into. There must be no suggestion of one spouse being pressurised into signing the agreement.

It is possible to make changes to a Prenuptial Agreement after it has been signed but only with the agreement of both parties.

Prenuptial Agreements are recognised in many but not all countries of the world. We can advise you on a Prenuptial Agreement under Scots Law, but it may not be enforceable in another country. If you intend moving to a different country in the future, you should take legal advice in that country to check if you will need a new Prenuptial Agreement. There may be specific styles or formats of agreements or procedures you have to follow for a country in order to make your agreement valid there.