The Law Commission in England and Wales has advised the Government that pre-nuptial agreements should be legally binding, providing they meet certain criteria when they are entered into. Until now, courts in England and Wales have not been obliged to uphold such agreements.
In contrast, north of the border, it has long been established that pre-nuptial agreements are normally enforceable. Indeed the Law Commission’s recommendations are broadly based on the position in Scotland. Here, pre-nuptial agreements are viewed just like any other contract. Providing the agreement is considered to be fair and reasonable and both parties have access to all the relevant facts (both legal and about their spouse’s/civil partner’s property) at the time the agreement is entered into, the agreement should be upheld by Scottish courts.
Entering into a pre-nuptial agreement could be portrayed as unromantic and mercenary. Rather it should be treated just like any other form of insurance – something that, should the relationship fail, will help limit the emotional and financial burden. A pre-nuptial agreement, or ante-nuptial agreement as they are sometimes called, can be as specific or as comprehensive as the couple wish. Agreements can be particularly attractive to those entering a marriage or civil partnership with substantial assets, such as a family business or farm, which they wish to protect. Similarly, those who are re-marrying or entering into a second partnership can benefit from the protection that such an agreement provides. They offer couples the power to make the decision as to how their lives should be separated if the need ever arises, before they are emotionally involved in the breakdown of their relationship.
For more information about pre-nuptial agreements, please see Karen Gibbon’s article from June 2013 here.
To discuss the reasons why you might want to enter into a pre-nuptial agreement in more detail and receive advice tailored to your situation, please call 0131 200 1200 and ask to make an appointment with a member of the Family Law team.