Will you marry me and sign this pre-nup?

14/02/2019

If you pass any jewellers’ window the diamonds are surrounded with hearts and pink balloons urging couples to get engaged on Valentine’s Day, the day which, after all, is a celebration of love.  There will certainly be more proposals today than there were yesterday!

Amid the champagne, roses and celebrations, I would urge couples to seriously consider a pre-nuptial agreement. 

But they are so unromantic!

As unromantic as you may think they seem, they could save an awful lot of heartache in the longer term.  Of course pre-nups are designed to protect couples if their relationship breaks down in the future so we understand very well that this may be the last thing on your mind when you are proposing to be married! In that instant you are sure you will be one of the successful couples, the couples who are married until they are old.  Statistically, however, that is unlikely, and better to be safe than sorry, right?  After all, if you are then the pre-nup is likely to have never seen the fresh air so no harm done. 

Are they not just for the rich and famous? 

No, they are certainly not.  Pre-nuptial agreements are not necessary for all couples but they are useful for some, especially where:

  • This is a late marriage for one or both of the parties and they own property already, or have savings, investments or a pensions built up before the marriage;

  • This is a second marriage and there are children from a previous relationship whom you might want to make sure inherit from you rather than the assets going to your new spouse and then their family; 
  • One party has interests in a business, especially a family business, which they want to protect;
  • One party has inherited wealth already which they want to protect; 

Given the changing demographics of married couples, one of these is likely to apply to many, many couples.

But why are they needed?

You may already know that on divorce in Scotland couples should split their assets fairly and that only assets acquired by the couple during the period of the marriage are to be shared.  That is all well and good.  However, life gets complicated and circumstances change.  For example, you own a lovely house on the South side of Edinburgh, you’ve even paid off your mortgage before meeting the man of your dreams.  That house is not matrimonial and will never be “shared” with your husband should you divorce, even if he moves in to it and you live there happily as a family.  However, what if you decide you want to be beside the water, move house, make a fresh start?  You sell your lovely (non-marital) house and use that money to buy your dream house by the sea.  Suddenly that house is matrimonial property, having been acquired during your marriage, and is therefore included in the total property to be split fairly on your divorce.  Now that’s not fair? 

You may think that is unfair, and surely you’d be able to argue that you should get your money back even if you divorce?  You may be right.  However, believe me when I tell you as a family lawyer with 13 years’ experience that it is much, much, easier for couples to agree on what is fair and unfair when they are in love with each other than when they are separating and, probably, hate each other!  It is highly likely that before your marriage you would both readily agree that your investment in this house, or the proceeds of sale of this house, should of course be protected and remain yours even if you divorce in the future.  I would doubt the same can be said if the question was asked when you divorced.  Which is exactly why pre-nups are a good idea.  Far from being controversial or contentious, they are often straight forward and sensible and don’t cause any upset whatsoever. 

What can they do? 

Like most things pre-nups can be used for all sorts of purposes, but the most common use is to ring-fence pre-marital assets, and the proceeds of sale of those assets, for the future.  This is what is likely to be uncontroversial.  They could, however, be used for other reasons, perhaps subject to more controversy.  For example, they could be used to create a situation where there would never be any matrimonial property built up during the marriage and that all property is simply divided in accordance with ownership.  Alternatively, they may provide for a payment on divorce based on the number of years you have been married. 

When do I need to think about it?

You don’t need to discuss a pre-nup immediately on engagement.  Have your party and celebrate first.  However, I would urge you to think about it as early as possible as we find the earlier a couple deals with it, the easier it is.  It should certainly be discussed and finalised well in advance of the wedding because the last thing you want in the run up to the wedding is the stress of signing a pre-nup in the 12th hour.  Agreements signed near to the wedding date could be seen to be unfair, given the stress and pressure which could be on one party at this time to sign it, and it could even lead to weddings being abandoned!   

What is often forgotten is that it is even possible for an agreement to be signed after the wedding if there is not time before.  In those circumstances the agreement is called a “post-nuptial agreement”. 

I thought they weren’t enforceable? 

There has been a lot of press coverage over the years about the enforceability of pre-nups but in Scotland they are legally enforceable.  Couples of sound mind can reach agreement in relation to their finances, as long as they have both made full disclosure of their assets to each other, they have both had the opportunity to take legal advice and that the terms of the agreement are fair and reasonable at the time it was entered into. 

What should I do? 

If you are contemplating a marriage, think carefully about whether a pre-nup would benefit you and raise it with your partner early.  If you want any information about whether a pre-nup could help you then please do not hesitate to contact us