Marriage week runs from 7 February to 14 February 2015 and 8 February was World Marriage Day. For many people, the idea of a pre-nuptial agreement seems terribly unromantic and negative. For people marrying for a second time who have been divorced before agreements like this seems more like sensible planning, much the same as making a will.
First things first, are pre-nups enforceable? In Scotland, generally speaking, yes.
If a pre-nup is fair and reasonable when it was entered into it should be upheld by the court if the couple divorces. So it’s important that full and frank information about finances is exchanged before the agreement is signed and worth remembering that both parties can get their own legal advice.
There should not be any undue pressure brought to bear on one party to sign – presenting the agreement on the morning of the wedding with an ultimatum that it must be signed or the wedding is off is not likely to withstand scrutiny later. It is also important to keep the agreement under review and if need be, make adjustments for significant changes in circumstances such as the arrival of children.
In England the position isn’t so clear but the trend in recent years has been to give them more weight in divorce settlements, although the final decision as to whether to enforce a pre-nup still rests with the court.
The main benefit of a pre-nup is that it gives peace of mind as to what might happen in the worst case scenario of the relationship failing. It’s a bit like an insurance policy – like any sort of insurance you hope that you’ll never need to claim on it, but it is reassuring to know that it’s there if you do.
In Scotland pre-nups are generally used to ring fence certain assets to prevent their value from being shared on divorce. There may be a family business which one party (or his/her family) want to keep out of a divorce battle. The parties might want to keep their assets separate so that they can leave them to children of a previous relationship. There are even unconfirmed cases of couples outlining what would happen to their pets if they were to split up (a “pre-pup”?)
You can have a pre-nuptial agreement, deal with the practical, financial matters and still have a wonderful, romantic fairy tale day – safe in the knowledge that if the worst did happen later you will not spend years and thousands in a bitter divorce battle.
If you would like any more information about pre-nups please contact a member of our Family Law team.
