The Press and Journal (Aberdeen and Aberdeenshire)
How a ‘prenup’ agreement can help you avoid trouble or strife
With the traditional wedding season looming, Faye Donald, partner in the family law team at north-east firm Raeburn Christie Clark & Wallace, takes a look at prenuptial agreements
If you want to protect your existing assets when you marry, you may wish to enter into a prenuptial agreement.
Traditionally, prenuptial agreements have been perceived as being reserved for the rich and famous, and in some way distasteful – a sure sign the marriage is doomed from the very start.
The reality is, however, that such arrangements are increasingly common and we are seeing more of them in Scotland.
We have compiled this short guide to help dispel some of the myths surrounding prenuptial agreements. Is a prenuptial agreement for me? They are typically used:
1. Where there is unequal wealth coming into the marriage.
2. In a second marriage, particularly where either or both of the parties did not enjoy their experience of the divorce process first time around or there are children of previous relationships to be considered.
3. Where someone is to receive family wealth during the marriage and there is a desire to “ringfence” this, so it is protected in the event of a future divorce. The beauty of them is they can be drafted to suit your specific circumstances. Generally speaking, they are designed to exclude or reduce the provisions of the law regarding matrimonial property and financial provision on divorce/separation. A prenuptial agreement can also be used to agree an advance settlement terms in the event the marriage breaks down.
What are the benefits?
The advantages include peace of mind about what would happen in the worstcase scenario of divorce, avoiding uncertainty – and, therefore, disputes – and making sure a couple is together for the right reasons and not because one of them is wealthy.
Are they worth the paper they are written on?
The short answer is yes. Although a prenuptial agreement can be set aside or varied by the court, Scots law has a strong ethos of allowing people the freedom to contract.
Courts are loath to interfere with an agreement entered into between two adults of sound mind.
The primary concern of the court is to ascertain whether the agreement was fair and reasonable at the time the parties signed it.
It might be worth thinking of them as a safety net. The sad fact is that some marriages do end in divorce.
By entering into a prenuptial agreement you may reduce some of the anxiety that a separation inevitably brings.
Hopefully, you will never need to refer to it again – but, should you find yourself in the worst-case scenario, you have already built up a degree of protection. It is important you both take independent legal advice on the terms of the agreement before it is signed.
Discussions should take place well in advance of the wedding, primarily to make sure there is no suggestion of either partner having felt pressured into signing, but also to allow you both to focus on the more enjoyable aspects of planning the big day.
“The beauty of them is they can be drafted to suit your specific circumstances”