What is a pre-nuptial agreement?
Pre-nuptial agreements are a contract between two people who are getting married, primarily to protect assets in the event of a separation or divorce. Such agreements are now accepted as being enforceable in Scotland and are becoming increasingly popular as a way for couples to set out what would happen in certain circumstances if they separated or divorced.
Many different arrangements can be included in a pre-nuptial agreement, such as protection of both parties’ existing assets (often referred to as “ring fencing” assets) and/ or agreeing the level of financial support to be paid to one party after separation.
Pre-nuptial agreements are usually drafted so that they remain in force indefinitely. However, they can be drafted in a certain way to ensure that they would cease to have effect after a certain number of years or when a child was born within the marriage.
Points to consider
• We would always ensure that both parties had independent legal advice before entering into a pre-nuptial agreement
• It is important that the agreement is signed well in advance of the wedding, to avoid any implication of pressure being put on one person.
Why consider a pre-nuptial agreement?
The benefit of a pre-nuptial agreement is to give both parties certainty and clarity on what would happen in the event of their separation and divorce.
They are not simply for people with a significant amount of wealth. They may be beneficial for couples who are marrying later in life, 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 matrimonial home.)
The Scottish courts will recognise the pre-nuptial agreement if it was fair and reasonable at the time it was entered into.
If you are considering getting a pre-nuptial agreement or would like any further information about pre-nuptial agreements please contact Jenny Broatch
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