With all the forthcoming excitement for the Royal Wedding on 29 April between Prince William and Kate Middleton, many family lawyers would give a cautionary word of wisdom to the Prince, to carefully consider his legal position prior to entering into wedded bliss, and he would be well advised to consider entering into a prenuptial agreement with his future wife.
Not very glamorous we know, and certainly not very romantic, but practical and sensible, particularly if you are a wealthy prince!
Pre-nuptial agreements are still quite unusual in Scotland but they can be extremely useful in setting out a couple’s financial position from the outset. This can be of particular importance if parties are well off or perhaps in second marriages where one or both spouses come into the marriage with pre-marital wealth that might be earmarked for children, rather than it being the subject of potentially acrimonious dispute should that marriage fail.
Prenuptial agreements have always been enforceable in Scotland, while in England the law is unclear and quite frankly “a mess” (not our words, but those of Baroness Hale in the notorious English divorce case of Radmacher). If you have property in Scotland or live here or are domiciled here, you can make an agreement here and declare that, as part of it, any question of interpretation should be in accordance with the laws of Scotland (perhaps someone should have had a word with Paul McCartney…..)
It might seem to be inappropriate to talk about divorce and separation before a couple even get married, but sadly it is a necessary evil considering the ever increasing number of divorces. Separation and divorce can be an extremely stressful, lengthy and expensive business but having a pre-nup can help alleviate some of these difficulties.
In Scotland, the starting point in any divorce is that matrimonial property should be shared fairly between the parties to a marriage. The definition of matrimonial property covers most things acquired by one or either of the parties during their marriage, so tends to exclude assets owned prior to marriage. Some people therefore think that there is no need for a pre-nup in Scotland. However, it can sometimes be unclear what was owned by whom before marriage. There are also some notable exceptions to the general rule, particularly in relation to pensions and life policies. Setting out your position from the start can avoid real difficulties here. Pre-nups can also deal with issues where one spouse intends to use pre-marital funds for marital purposes e.g., where someone uses their own money to put down as a deposit for a family home which will be owned jointly. Parties can agree about what will happen if the house requires to be sold or if they divorce. This can be particularly useful, as arguing about the “source of funds” in court can be notoriously difficult and uncertain.
Lynne Sturrock is a specialist Family Law Solicitor. If you have any questions about Pre-Nuptial Agreements please contact Lynne on lsturrock@thorntons-law.co.uk or call 03330 430150.
