Analysis: Decision will not change the view of Scotland's sheriffs

Published on Thursday 2 July 2009 21:51

FAMILY law experts said yesterday the Radmacher case will have little impact on the way Scotland's courts view pre-nuptial agreements, arguing that the ruling shows England and Wales are simply "catching up".

Whereas pre-nups are regarded as merely persuasive in the courts of England and Wales, they are viewed north of the Border as having greater authority. Scott Cochrane, a partner at Brodies and one of Scotland's leading family law experts, said pre-nups were respected by Scotland's courts as far back as Victorian times.

He said: "We don't see it as making a bit of difference in Scotland. It's more the case that England is catching up with us.

"There's never been anything legally binding (regarding pre-nups] and there is no case law about it. You can never guarantee anything, and we don't.

"But no one has successfully overturned a pre-nup in the courts. There have been challenges in the past, and they have failed. The key is ensuring the agreement is well drafted and fair."

He added: "It's good to see the profile of pre-nups being raised with this case. More people should have them."

Alasdair Loudon, partner and head of the family law team at Turcan Connell, said: "Although the matter has not been tested by the courts, it is generally taken to be the case that a court in Scotland would uphold a pre-nuptial agreement providing conditions are satisfied."

Mr Loudon added: "The party being presented with the pre-nup should have a proper opportunity to reflect upon its significance; both parties should have a proper opportunity to take legal advice on the significance of the pre-nup; (and] there should be full disclosure between the parties of their respective financial positions at the time of entering in to the prenup."