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Getting married it is a commitment built on love and trust and is one of the most exciting, but significant, decisions that you will make in your lifetime. This is why it is important to consider the practical aspects of marriage, being how your finances and assets will be handled once the marriage has taken place and for future years to come. This is where pre-nuptial agreements come in, often referred to as “prenups”.

It is a common misconception that pre-nuptial can be unromantic in the lead up to your marriage, or that they are only for the wealthy, however, they are becoming increasingly popular, and for good reason. This is because pre-nuptial are able to bring clarity, fairness, and peace of mind to your relationship, and are helpful to those that may have assets such as property from before the marriage, or are simply looking to avoid disputes in the future.   This as a smart and proactive way to create mutual understanding about pre-marital assets.   Ultimately this will have the benefit of protecting both parties interests – it is not about protecting one person from the other.   Think of it like an insurance policy – hope you never need it, but it is there just in case and assists with any disputes down the line.   It is not about expecting the worst, but about preparing for a life together.

What is a pre-nuptial agreement (prenup) and why are they important?

In Scotland, a pre-nuptial agreement is a written contract drawn up by a solicitor that is legally recognised and enforceable. It is signed by both parties and outlines the agreement that they have come to in terms of their assets and finances should they separate or divorce in the future, this will consider, in particular, what will or will not become matrimonial property after marriage has taken place.

Why Power of Attorney Matters for Carers - Support Plans

Accidents and illnesses such as strokes or dementia result in the loss of capacity for thousands of individuals in Scotland each year. In the event of a health crisis even close family members are unable to make decisions on your behalf in the absence of legal authority.

A Power of Attorney guarantees that an individual you trust can act on your behalf in the event that you are no longer capable of doing so. It would include critical information including:

  •   Financial support and matters (including the management of accounts and the payment of bills)
  •   Personal welfare, including healthcare and living arrangements

 Without a Power of Attorney, even your next of kin cannot automatically step in to make decisions for you. Planning in advance provides you with a sense of peace of mind, safeguards your wishes and simplifies processes for your loved ones during a potentially distressing period.

What is Matrimonial Property?

Matrimonial property is property that has accumulated throughout the period of marriage. For example, if one party owned a property prior to their marriage, this would not be considered as matrimonial property. This is relatively straightforward, however, can become confusing if the property was sold during the period of marriage and these funds were then used to purchase the matrimonial home.  Signing a pre-nuptial agreement would assist in ring-fencing individual assets and finances to avoid these potentially being converted into matrimonial property.

Should separation take place, the matrimonial property would be shared in line with the Family Law (Scotland) Act 1985, unless a pre-nuptial agreement has been signed prior to marriage.

Are pre-nuptual agreements enforceable in Scotland?

The case of Gillon v Gillon determined the following principles which should be met when entering in a pre-nuptial agreement. It must be fair and reasonable at the time that it is being entered into, both parties must seek separate independent legal advice at the time of signing and it should be clear that there was no pressure to sign the agreement placed on either party.

Should the above be satisfied and the agreement be properly prepared, then it will be enforceable and legally binding in Scotland.

Conclusion - Understanding Prenuptial Agreements in Scotland

Planning a wedding can be overwhelming and you may not wish to add another item to your to-do list, however, taking the time to ensure that there is a clear and fair agreement in place may save you from facing challenges in the future. In doing so, you can focus on what matters as you enter an exciting next chapter of your lives.

If it is the case that you are already married and this is something that you wish you had considered, or your circumstances have changed for example, if you have inherited a large sum of money, the option is still available for you to consider a postnuptial agreement. This has the same effect as a pre-nuptial agreement, however, has been drafted and signed at a different time. 

If you’re considering a prenuptial agreement or need expert advice on any aspect of Scottish family law, we’re here to help. Our experienced family law solicitors work with clients across Edinburgh, Glasgow and throughout Scotland. Contact us today on 0141 433 2626 for clear, confidential guidance tailored to your situation