Prenups are a useful insurance policy for sensible marrieds

Prenuptial agreements were once seen as tools reserved for the rich and famous, but that is no longer the case. For many couples in Scotland, a prenuptial agreement (or prenup) is a sensible and practical step to take before marriage. Much like an insurance policy, it is something you hope never to use, but it provides clarity and protection if required.

A prenup sets out in advance what will happen if a couple separates or divorces. For a prenup to be valid in Scotland, it must meet three essential tests:

It must be fair and reasonable when signed.

Early advice from a specialist family lawyer is key to a good prenup, says Debbie Reekie

Both parties must have the opportunity to seek legal advice.

Neither party can be pressured into signing.

What is fair and reasonable depends on the circumstances of each couple. There is a common misconception that prenups only protect the wealthier party. While they can protect assets, they also provide certainty and fairness for both individuals. Importantly, and despite what we see on TV, a prenup cannot be presented at the last minute: parties need sufficient time to take advice, so it should be drafted and signed well in advance of the wedding.

Scottish courts are generally reluctant to overturn a prenup that meets the three tests above. If properly prepared, the agreement should withstand a challenge.

To understand the benefits of a prenup, it is helpful to consider what happens without one. The Family Law (Scotland) Act 1985 governs financial provision on divorce. In broad terms, the net value of the matrimonial property is shared fairly—which usually begins as an equal division. Matrimonial property includes assets acquired before or during the marriage, such as a family home bought in one party’s sole name before the wedding. Assets acquired during the marriage are matrimonial property unless they were a gift from a third party or an inheritance that remained in its original form.

A key issue is that non-matrimonial property can easily become matrimonial property, for example through sale, transfer or conversion. Once converted, its value may become subject to equal sharing.

A prenup helps prevent this. Its main purpose is to ensure that only the net value of matrimonial property acquired through income and efforts during the marriage is shared. It seeks to protect property owned before marriage, or gifted or inherited, from being treated as matrimonial property if it changes form during the marriage. While absolute guarantees are impossible, a well-drafted agreement provides strong evidence of the couple’s intention to ring-fence such assets.

Prenups can be tailored to a couple’s circumstances. They may address spousal support, responsibility for school or extracurricular costs, or housing arrangements. The level of detail can be as straightforward or as sophisticated as needed.

Different jurisdictions take very different approaches to prenups. If couples have assets abroad, or later move abroad, specialist advice in the relevant country is essential. Cross-border issues can create complexity, uncertainty and additional expense.

Ultimately, a prenup helps couples entering a marriage or civil partnership agree on fair, reasonable terms should the relationship end. Early advice from a specialist family lawyer is key to ensuring the agreement reflects both parties’ intentions and stands up to scrutiny.

Debbie Reekie is a Senior Associate at Brodies LLP​