Whilst they may seem unromantic…

Pre-nuptial Agreements, more commonly known as pre-nups, are a way for couples to ensure their financial affairs are regulated in a way which works for them and their family in the event of a future separation.

Pre-nups allow couples to retain control over their finances and have certainty over what may happen in the future. 

So – what are the key things to know?

Can you have a pre-nup in Scotland?

Yes, couples who plan to get married can enter into a pre-nup in Scotland. If a couple has ties to other countries, it is important to take advice at the outset on where is best for them to enter into a pre-nup. 

What can a pre-nup include?

Pre-nups focus on regulating how a couples’ financial affairs will be dealt with in the event of a future separation/divorce, including:

• Ring-fencing certain assets from the sharing exercise which would ordinarily take place upon separation;
• Protecting pre-marital assets;
• Protecting inheritance or gifts that have been received, or may be received in the future;
• Setting out how jointly owned assets will be divided; or
• Making financial provision from one spouse to the other, for example transferring a family home or paying a sum of money.

What if I am already married?

You can still regulate your financial affairs in the same way as a pre-nup but instead, with a Post-nuptial Agreement, often referred to as a post-nup. Post-nups can be particularly helpful if, for example, someone receives inheritance during the marriage which they wish to protect in the event of a future separation.

Can a pre-nup be challenged?

A pre-nup or post-nup can be challenged in Scotland if it was not fair and reasonable when it was entered into. Therefore, it is important that:

•    Both individuals understand the Agreement they are signing;
•    Both individuals have the opportunity of taking independent legal advice; 
•    No one is placed under pressure to sign the Agreement; and
•    There is fair disclosure of each other’s resources when reviewing and signing the Agreement.

What should I think about if I want to get a pre-nup?

The first thing to do is speak with your partner. Are they on the same page? If not, try and explain to them why you think a pre- or post-nup would make sense for you both. Have an open discussion around what you would want to include in the document and ensure it works for both of you. 

The next step is to speak to a lawyer  who can give you advice on what to consider when entering into a pre-nup or post-nup, the consequences and the process from there, before preparing a draft for you to review. 

If you would like to have a confidential discussion about putting in place a pre- or post-nup, you can contact our team. 

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