There has been much in the news over recent months about the advent of prenuptial agreements in England. In England it has been a long standing view that such agreements were not binding. Recent changes south of the border are however now starting to test this long standing belief.
The position in Scotland is, however, different. Here in Scotland we have a long history of prenuptial agreements or "marriage contracts" going back hundreds of years. Indeed, during recent preparations for the move of our head office a marriage contract from 1882 was uncovered!
It can be seen therefore that prenuptial agreements are nothing new for us Scots. The questions our family law team are most often asked however are how these agreements are currently viewed by the courts and are they enforceable?
A starting point is what is a prenuptial agreement? In the most basic terms, a prenuptial agreement is a written agreement entered into by a couple before marriage which sets out how their property should be divided should they later separate, and or, divorce.
Scottish Courts have traditionally treated prenuptial "contracts" as they would most other contracts. The question then becomes whether both parties entered into the contract freely and whether it was "fair and reasonable" at the time it was entered into. The general feeling of the courts has always been, and continues to be, that if the answer to both of these is yes then there is no reason why the Court should not enforce it.
A prenuptial agreement will be particularly relevant to those with assets which they held pre-marriage, or who are marrying perhaps for a second time and have assets which they wish to protect. It is, of course, hoped by both parties at the time of entering into such an agreement that it will never require to be relied up. The position is however that the law in relation to this issue is complex and it is therefore essential that full and detailed legal advice is obtained by anyone considering such an agreement.
The Drummond Miller Family Law Team is extremely experienced in dealing with prenuptial agreements, and deal with these in a professional but empathetic manner. If you would like further information and advice please get in touch with our experienced Family Law Solicitors in Edinburgh, Dalkeith, Musselburgh and Bathgate, who are also able to offer advice in relation to any aspect of Family Law including separation and divorce, including financial matters and issues regarding contact and residence of children.