Be my Valentine… and please sign this pre-nup - Jennifer Macdonald
In the UK today, couples are, generally, free to get married, and priests and other celebrants can conduct their roles in public without fear of incarceration or death. In Scotland, two individuals can marry if they are of legal age, so long as they
- are not already married or in a civil partnership with someone else;
- are not closely related to each another; and
- are capable of understanding what marriage means and of consenting to marriage.
As St Valentine’s brings newly engaged couples into the depths of wedding planning and preparations for their big day, it is worthwhile taking a moment to pause and consider the significant legal consequences of marriage. Marriage bestows a range of rights and obligations on individuals which can have significant financial implications, particularly if the marriage breaks down or on death of one of the parties.
pre-nuptial agreements are an increasingly popular tool for couples to record the arrangements they wish to apply either during the marriage or following separation and/or death. Often, they are used to specify that certain assets – for example, those which a person has acquired before the marriage, or which are received during the marriage by way of inheritance or gift – will be excluded from the matrimonial pot, regardless of changes to such assets during the marriage. In particular, individuals with existing business, financial or property interests, those who stand to inherit assets or money in the future, or those who have children from previous relationships, are well placed to think about the benefits of having a pre-nuptial agreement in place.
Although it may no longer be necessary for a benevolent priest to conduct wedding ceremonies in secret, pre-nuptial agreements are one aspect of wedding preparation which individuals often prefer to keep private. Whilst such desire for privacy is entirely understandable, it must also be borne in mind that the disclosure of financial information is important to ensure the enforceability of pre-nuptial agreements. Individuals will be expected to disclose the full extent of their wealth and assets to each other (and to their solicitors) during the process. That can sometimes cause a degree of discomfort, especially in situations where significant family wealth exists for the benefit of multiple generations. Having an experienced lawyer who can guide their client through the process can be especially valuable for those who are sensitive about the confidentiality of their financial affairs.
The enforceability of pre-nuptial agreements in Scotland has yet to be fully tested by the courts, but it is generally accepted that they will be upheld provided that certain safeguards are met. It is important for a pre-nuptial agreement to be signed as far in advance of a marriage as possible, and also for both individuals to receive well-qualified independent legal advice.
While it may be difficult to bring up the idea of a pre-nuptial agreement in a love letter signed “from your Valentine” this 14th February, early consideration of the legal implications of marriage and the financial options available can provide much needed comfort and protection for couples choosing to get married.
Jennifer Macdonald is a Senior Associate, Turcan Connell
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