Postnuptial & Prenuptial Agreements

Our most frequently asked questions:

• What is a prenup (prenuptial agreement)?

  A prenuptial agreement is a written contract entered into by a couple ahead of their marriage or civil partnership which sets out their intentions as to what should happen to certain assets in the event that they separate. Such agreements are becoming an increasingly common way to protect or "ringfence" wealth already belonging to one or both parties before they marry, or which is likely to be gifted or inherited by them in the future. However, the purpose of a prenuptial agreement can be wider ranging and can include provision for the division of property upon the breakdown of a marriage or civil partnership. This can be particularly beneficial for couples marrying later in life or for a second time, to ensure that their pre-marital assets are protected for a future generation or purpose.

  A prenuptial agreement can be tailored to suit the needs and circumstances of a particular couple and can provide both parties with more certainty about their financial position in the event of a separation.

  If a prenuptial agreement is to be put in place, it is sensible to take steps to do so well in advance of a marriage/civil partnership taking place, which will also allow parties the opportunity to obtain independent legal advice before signing the agreement.
  

• Can you write your own prenup?

  To ensure a prenuptial agreement is legally binding and enforceable, it is recommended this should be drafted by a specialist family law solicitor who has the necessary expertise to ensure the terms of the agreement are clear, properly framed, and can be easily understood. Prenuptial agreements can be complex and may require to cover several different scenarios - such as a couple living abroad, having children, or the possibility of inheriting significant wealth.

  To avoid a prenuptial agreement being challenged later, its terms must be fair and reasonable, and it is recommended both parties should obtain independent and separate advice prior to signing the document to ensure that neither party is disadvantaged or coerced into signing an agreement that may not be in their best interests. Although certain proforma styles are available, these may not be consistent with the provisions of Scottish law or provide adequate protection of parties' assets. Therefore, caution should be exercised before using these as they may not be fit for purpose and more likely to cause problems in the future.

• Can you get a prenup after marriage?

  A prenuptial agreement can only be entered into prior to marriage or civil partnership. However, after marriage it is possible to enter into a very similar agreement, known as a postnuptial agreement. This has the same purpose as a prenuptial agreement but is entered into after a wedding or civil partnership has taken place, provided the couple are still living together. Like a prenuptial agreement, a postnuptial agreement can set out how certain assets will be treated if you separate or divorce. It may be that a couple ran out of time to put one in place before their wedding or civil partnership took place, or one party's financial situation changed in some way, (for example, if they have inherited or been gifted a large sum) which has made it important to regulate matters.

  As with prenuptial agreements, broaching the subject of a postnuptial agreement with your spouse/partner may be difficult, but if your circumstances have changed following marriage or civil partnership, it is sensible to consider whether a postnuptial agreement could assist in protecting your financial interests.