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Preparing for the Future: Pre-Nuptial Agreement v Post-Nuptial Agreement

Both Pre-nuptial and Post-nuptial agreements are becoming increasingly popular in Scotland, with many couples wishing to make a decision on their assets before or after walking down the aisle. This is particularly important for people who have brought assets to their marriage, have inherited assets during the marriage or who wish to protect any children from a previous relationship. The main difference between a pre-nuptial and post-nuptial agreement is simply the date on which they are entered into, but both can provide high levels of protection during the difficult times of separation or divorce.

What is a Pre-nuptial Agreement?

A Pre-nuptial agreement is a written contract entered into before marriage, which sets out what will happen to some, or all, of the couple’s finances, should they separate.

What is a Post-nuptial Agreement?

A Post-nuptial agreement has the same purpose as a Pre-nuptial Agreement but is entered into during a couple’s marriage, whilst they remain together. They are often considered when an individual has received a large inheritance or gift during marriage and they wish to ensure this continues to pass down the family line. This agreement can also be considered if a person’s financial situation changes in some way – perhaps due to business restructuring or a career change.

What can a Pre-nuptial and Post-nuptial agreement cover?

Either agreement can include various arrangements to suit the needs of each couple, such as:

• Protection of both parties’ existing assets;
• Setting out how other assets will be divided between the event of a future separation or divorce or dissolution rather than them being divided in accordance with Scots law, which can have unexpected results;
• Agreeing on the level of financial support to be paid after separation;
• Arranging pension provision for stay-at-home spouses

Benefits of a Pre-nuptial and Post-nuptial agreement?

The main benefit of entering into a Pre-nuptial or Post-nuptial Agreement is peace of mind and clarity as to what would happen if the couple wish to divorce. Such agreements are not just for the wealthy. They can be particularly beneficial for couples marrying later in life or marrying for the second time. Both agreements are typically prepared so that they remain in force indefinitely. They can also be written in such a way that the agreement ceases to have effect after a certain number of years or when an event occurs, such as the birth of a child. A Pre-nuptial and Post-nuptial agreement can also be changed after signing, as long as both parties agree to this.

Are Pre-nuptial and Post-nuptial agreements enforceable?

Pre-nuptial and Post-nuptial agreements have never been fully tested by the Scottish Courts, but the general view is that a properly prepared agreement, which is fair and reasonable at the time it was entered into, will be upheld. Both parties must have also had the opportunity to take legal advice before signing, and must not be put under pressure to sign. The ability to enter into an agreement sits neatly with the legal right in Scotland to contract freely on certain matters without interference from a Court. Both agreements are also recognised in many but not all countries of the world.

A Pre-nuptial or Post-nuptial agreement can vary widely, whatever your intentions, circumstances or concerns may be. Our experienced Family Law team can advise you on all aspects of such agreements, and guide you through the whole process, minimising the risk of any challenges in the future.

For information and advice on any family law related matter, please contact us by telephone on 0141 375 1222 or by completing our online contact form, to arrange an initial consultation with our specialist Family Law solicitors.

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