Family Law – Prenuptial Agreements
- Pre-nuptial Agreements are generally enforceable in Scotland. Scots law will treat such a contract like most other contracts. If it was entered into freely and is fair and reasonable then the Court is unlikely to interfere in a couple’s private arrangements.
- Such Agreements are useful where there is pre-marriage property which one party seeks to protect. It may be the case that the marriage is a second marriage. With many people entering into marriage later in life there may be existing property which parties would not wish to share on separation or divorce.
- It need not be the case that vast wealth is possessed. Such Agreements can be used to provide parties with a degree of certainty in the event that the marriage breaks down. This forward planning can avoid the need for financial negotiations on divorce on how property is to be divided.
- It is important that advice is sought as careful drafting and consideration is vital in ensuring the enforceability of such an Agreement. Our team are happy to advise on the preparation of pre nuptial Agreements.
FREQUENTLY ASKED QUESTIONS IN RELATION TO PRENUPTIAL AGREEMENTS
- Is there an ideal length of time for one to be set up prior to marriage? Is there a legal time constraint, i.e. 2 months before?
There is no legal time constraint. Clearly the earlier an agreement is entered into, the better.
- Is it legally binding ie will it be upheld during divorce settlements?
If properly drawn up and legal advice is sought normally by each party, then such an agreement should be binding. The position is different in England where meantime such agreements are not necessarily binding.
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