Why should I consider a pre-nuptial agreement?

Is a promise to not bring pre-marital assets into a divorce enough or is a pre-nuptial agreement just common sense?

The pre-nuptial agreement isn’t designed to kill off romance, or to suggest to your partner you’re already thinking about divorce before you’re even married, it’s more about putting something in place now that can help make things clearer and easier further down the road if the worst happens and you separate.

Why should I think about a pre-nuptial agreement?

A pre-nuptial agreement sets out what assets will become matrimonial property and — therefore — will need to be considered as part of the separation if the marriage breaks down.

And having an agreed position on what counts as matrimonial property means you’re less likely to have to rely on costly litigation if that happens.

What is matrimonial property?

Matrimonial property is assets and debts acquired or accumulated during a marriage.

This is property in your name, your spouse’s name and property acquired in joint names. It does also include a family home you bought together before you were married.

An exception is property gifted or inherited from someone other than your spouse.

So far, so simple.

Not quite. What happens if you reinvest any of these excluded funds?

Perhaps, for example, you used the money to build an extension onto your matrimonial home. This converts the funds into matrimonial property and the best way to avoid this happening is to protect your assets at the time.

A pre-nuptial agreement aims to stop the conversion of non-matrimonial property to matrimonial property.

Are pre-nuptial agreements enforceable in Scotland?

Like all minutes of agreement, pre-nuptial agreements can always face new tests and challenges in the courts, but the general view is that a properly prepared pre-nuptial agreement, which meets certain requirements when it was prepared and agreed, will be upheld.

Specifically —

• It should be fair and reasonable at the time the parties signed it

• Both parties should have had the opportunity to take legal advice before signing. Even if one chooses not to, both of you need to have had this opportunity

• There must be no pressure to sign

Discussion and agreement is vital when drafting a pre-nup. Luckily there is no time limit on when these agreements should be in place before a wedding, therefore, it provides a good amount of time to get the agreement discussed and agreed before the big day.

Don’t leave it too close your proposed wedding date and don’t underestimate the time it takes to pull all the relevant information together and to reach agreement on what should be included.

But, what if you're already married? Fear not! You just need a post-nuptial agreement instead… but that’s a topic for another blog post.

Watch this space.

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