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Digby Brown Family Law

Planning a prenuptial agreement in Scotland

16 January 2017 by Roger MacKenzie, Head of Family Law

 

Prenuptial agreements have a long history in Scotland and, as long as they are fair and reasonable at the time they are entered into, there is no reason to think a court would not recognise the agreement in the event of a future separation and divorce.

Independent legal advice and sufficient time to consider terms

It is important that both parties to the agreement get their own independent legal advice and that both have sufficient time to fully consider the terms and implications of the agreement prior to the wedding.

 

Full disclosure of all assets held by both parties requires to be made as part of the process.

How is matrimonial property defined in Scotland?

In Scotland matrimonial property is defined as assets acquired by either spouse during the marriage and before separation, except by way of inheritance or gift from a third party.

 

So assets owned prior to marriage would not be classed as matrimonial property.

 

However, if you later bought a house or other assets with pre-marital funds, or by selling a house you owned before you met your future spouse, in law you would have converted that part of your own assets from non-matrimonial property to matrimonial property and your husband or wife could have a claim on it.

 

Even without a prenuptial agreement, the source of funds used to purchase the new asset can be looked at to justify the spouse introducing the funds receiving credit for the bulk of the value of the property.

Protection of pre-existing assets in event of divorce

However, a prenuptial agreement can provide that any asset bought during the marriage using funds from a person’s pre-existing assets would not become matrimonial property, providing protection and peace of mind.

Prenuptial agreements can be a sensible step to take

The idea of a prenuptial agreement can seem unromantic. But another way to look at it is as representing sensible forward planning that takes account of specific circumstances.

 

The first step is seeking legal advice from a family solicitor to make sure the prenuptial agreement is fair and reasonable in the unfortunate event that the marriage breaks down.

 

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