Stirling Sheriff Court has recently reported the case of L v I, a decision of Sheriff O’Mahony, which has important implications for those considering or advising on pre- and post-nuptial agreements in Scotland.
Facts and circumstances
L and I were married in 2016 and separated in 2024. In September 2021 the wife, L, and the husband, I, entered into a post-nuptial agreement which detailed their significant financial assets at the date of the agreement and provided that, in the event of divorce, they would each retain their own separate property. If applied, the split of the matrimonial assets would have been substantially in favour of the husband. I and L were both legally represented at the time that they entered into the post-nuptial agreement.
In 2024, the parties separated and in 2025 the wife applied to Stirling Sheriff Court for divorce and financial provision. In her application to the court, she also sought to have the post-nuptial agreement between them set aside or varied in terms of section 16(1)(b) of the Family Law Scotland Act 1985.
The husband objected to the wife’s craves to have the agreement varied or set aside, and the case was sent to debate to determine whether the wife would be allowed to lead evidence in support of her position relative to the post-nuptial agreement.
Legal issues in the case
The basis for the wife’s challenge on the post-nuptial agreement is set out in section 16(1)(b) of the Family Law Scotland Act 1985. This provides:
“Where the parties to a marriage [or the partners in a civil partnership] have entered into an agreement as to financial provision to be made on divorce [or on dissolution of the civil partnership], the court may make an order setting aside or varying—
…
(b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.”
The husband’s solicitor argued that the parts of the wife’s written case about overturning the post-nuptial agreement were irrelevant and so lacking in detail that they should be dismissed. At the debate, the sheriff was required to analyse the wife’s pleadings about the circumstances surrounding the entering into of the agreement in light of the caselaw relative to section 16(1)(b).
The parties’ solicitors had each referred to caselaw applying section 16(1)(b). These were considered by the sheriff who, in his judgement, summarised the principles to be taken from those authorities. Sheriff O’Mahony found that the common theme in those cases is that each case must be determined on its own facts and circumstances. He also held that some general principles, however, can be elicited from the caselaw.
The sheriff determined that the task for the court is to assess the circumstances prevailing at the time of execution of the agreement in line with the ordinary meaning of section 16(1)(b) but went on to confirm that evidence of subsequent events may, in some cases, have a bearing on the assessment. The example given was in cases involving allegations of abusive conduct.
From the leading case of Gillon v Gillon (No 3) 1995 SLT, the sheriff noted that both fairness and reasonableness must be assessed. The nature and quality of the legal advice was a relevant and key factor. Gillon is also authority for inequality of outcome alone being insufficient to establish unfairness and unreasonableness.
The judgement also referenced the case of Bradley v Bradley 2017 SLT (Sh Ct) 201 which was authority for proving why the agreement was unfair and unreasonable and showing that any such unfairness is not offset by other factors.
Bryce v Bryce 2024 SCLR 112 also merited comment, where it was decided that the very unequal sharing of matrimonial property in that case alone was insufficient to establish fairness and reasonableness, but the court held that it should still be a factor to be considered among others.
Decision
The husband’s challenge relative to the pleadings was refused. The court held that the wife had given fair notice of her case. She had averred that she had been told that the marriage would be over if she did not sign the agreement, that she was distressed as a result of her husband’s behaviour, that the agreement failed to confer on her any meaningful benefit and that there was significant disparity in the financial outcome. In doing so she offered to prove that she had been pressured into signing, that she was emotionally vulnerable, that there was imbalance in their respective bargaining positions and no meaningful benefit to her. The fact that she had received legal advice was held by the court to not be an automatic barrier to her proving her case. Whilst this may be a significant factor in making a final determination about the post nuptial agreement, the sheriff found that it was open to the wife to prove that the advice received was inadequate and the effect that the advice had on her.
The court was not prepared to dismiss the arguments relative to the post-nuptial agreement at debate. The wife was allowed to proceed to prove her case. The sheriff made it very clear, however, that it was for the wife to prove the facts narrated by her by way of evidence and that the husband’s arguments may ultimately succeed once the court has heard the evidence.
Implications
Pre-nuptial and post nuptial agreements are on the rise in Scotland. Solicitors and clients should not be complacent about the potential for challenges of these on divorce. Such agreements can be varied or set aside when they are found to be not fair and reasonable at the time they were entered into. If these are to withstand challenge and determine how certain assets should be dealt with on divorce then it is important that these are carefully drafted, that consideration is given to the extent to which any unequal division might be offset by an advantage to the other party, and that adequate time is afforded to the person receiving the draft or the agreement for signing. It will be interesting to note the outcome of this case following proof.
If you have a pre or post-nuptial agreement and are concerned that it may not endure challenge, or you would like to put such an agreement in place, please get in touch with one of our family law experts.
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