No one goes into a marriage expecting it to end. However, with almost 33% of all marriages in Scotland ending in divorce, it makes sense for couples to look at ways of protecting themselves and their assets should their marriage break down.
While the divorce rate in Scotland has been declining since 2006, Pre-Nuptial Agreements have been gaining popularity with couples seeking to protect their pre-marriage wealth or to ensure other matters are decided in advance of the marriage.
What is a Prenuptial agreement?
A prenuptial agreement is a written contract between you and your partner, in which you agree what will happen to your assets if you separate after you are married.
A prenuptial agreement will be upheld by the court, provided that it was fair and reasonable when it was entered into. You should both take your own legal advice prior to signing an agreement no-one should ever be pressurised into signing.
The agreement can contain whatever terms you and your partner wish to include. Often assets owned prior to the marriage are ring-fenced and you can agree the on which future assets will be divided, future financial support after separation and even who will retain care of family pets.
A postnuptial agreement dealing with these sorts of issues can also be entered into whilst you are married.
What is the legal position on division of assets?
When a married couple separates the matrimonial property needs to be divided between the parties. Matrimonial property is defined as assets or debts which are obtained or accumulated from the date of marriage to the date of separation. A house bought prior to marriage but with the intention of being used as the family home is also classed as matrimonial property.
Any gift or inheritance from a person outside the marriage is non-matrimonial property. However, if a non-matrimonial property asset changes form over the course of marriage such as a pre-owned flat being sold and the proceeds being invested, will become matrimonial property.
What are the benefits of Prenuptial agreements?
There are many benefits to entering into a pre-nuptial agreement:
- Protection of Assets: If there are any assets you owned pre marriage such as a property or family heirloom, or any new assets bought using the proceeds of thisepre-marriage assets, can be ring fenced so as to ensure that their value isn’t shared on divorce.
- Protection of business interests: protecting any interest you have in a business will avoid future disruption or need for a business to be divided or sold off.
- Children: If this is a second marriage you may want to keep your assets separate so that you know that your children will inherit them and your spouse won’t have a claim to them
- Cost and time effective: Getting a pre-nuptial agreement will cost you less in comparison to fighting over assets for a long period of time in the future.
- Tailor made: Prenuptial agreements are not one size fits all and yours will be written to meet your specific needs.
- Avoiding uncertainty: A prenuptial agreement gives both you and your spouse certainty over what will happen if you do separate in the future. Having everything agreed whilst you are amicable can make the separation process less acrimonious, if the worst does happen.
Do you think a Prenuptial Agreement could help you?
If you are looking for advice relating to prenuptial agreements, post-nuptial agreements, or any aspect of Family Law, please get in touch with a member of our Family Law team on 0330 430150.
