A Pre-Nuptial Agreement is an agreement made by a couple before they enter into a marriage or civil partnership. The Pre-Nuptial Agreements usually ring-fence particular assets that were acquired by the parties prior to the marriage, such as a business or a particular property, and protect those assets against a claim by their spouse in the event of the marriage ending. Pre-Nuptial Agreements can also be used to regulate financial provision on divorce or regulate certain issues during the course of the marriage.
There has been much discussion as to whether Pre-Nuptial Agreements are binding. There is no Scottish case law on this however the legislation makes it clear that agreements seeking to regulate financial provision on divorce are binding unless they are specifically set aside by the Court. However providing the agreement is properly drafted and both parties have been given the opportunity of separate legal advice it is very unlikely that a Court in Scotland would overrule the terms of a Pre-Nuptial Agreement.
Pre-Nuptial Agreements are no longer just for celebrities and the super rich. Some view them as distasteful and contrary to the spirit of marriage. However whilst Pre-Nuptial Agreements are not romantic entering into such an agreement does not mean that the relationship lacks trust nor does it mean that the parties to the agreement anticipate the marriage failing. Pre-Nuptial Agreements are beneficial in a number of circumstances. Where one party to the marriage has substantial wealth accumulated prior to the marriage, the Pre-Nuptial Agreement can act as a useful safeguard. Business owners often enter into Pre-Nuptial Agreements to safeguard their interest in the business. These types of agreements have also become increasingly popular for those marrying later in life or for the second time; particularly when they have children from a previous marriage and want to protect their inheritance rights.
Entering into a Pre-Nuptial Agreement is not usually an expensive exercise. The costs vary greatly depending on the complexity of the situation however many people who have endured lengthy and expensive divorce proceedings would no doubt say that it is money well spent. Pre-Nuptial Agreements can be a positive thing. They can bring peace of mind to parties entering into a marriage and encourage less animosity in the unfortunate event that the marriage breaks down.