Ewan M Campbell: A royally sensible proposal

25/02/11, TSPL, Scotsman, Prince William and his fiancee Kate Middleton return  to St Andrews for the university's 600th anniversary celebrations. William and Kate sit at the Dias during the formal part of the visit. Pic Ian Rutherford
25/02/11, TSPL, Scotsman, Prince William and his fiancee Kate Middleton return to St Andrews for the university's 600th anniversary celebrations. William and Kate sit at the Dias during the formal part of the visit. Pic Ian Rutherford
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There has been much speculation in the recent press that an engagement announcement between Prince 
Harry and his girlfriend, US actress Meghan Markle, is imminent.

Talk of senior royals finding free weekends, and royal aides planning a “big event”, have only served to fuel such speculation, and suggest a royal wedding might be on the horizon.

Rumour has it that earlier this year, the terms of a prenuptial agreement were being discussed between the couple and their lawyers in the hope an agreement could be put in place within weeks of the discussions.

It has been reported that Meghan Markle initiated the discussions about an agreement, to ensure that should any future marriage not work out, she would at least be financially secure.

Interestingly, it has been said in the press that Prince William refused to sign a prenuptial agreement when he married Kate Middleton in 2011. It has also been reported that no prenuptial agreement was entered into between Prince Charles and Camilla Parker Bowles when they tied the knot.

There is no denying that the very suggestion of a prenuptial agreement to a newly intended, at first blush, might not seem the most romantic of proposals at a time when love is in the air. Neither party wants to think about falling out of love and the relationship turning sour.

However, whilst it is perhaps not romantic, it is eminently sensible, for couples that are planning to marry, particularly for a second time, to enter into such an agreement.

There is an assumption amongst couples getting married that they will be fair and reasonable to each other, at all times, whatever the future might hold for them; however, when marriages break up, emotions can run high.

There is therefore much to be said for any decisions to be made in advance of any break-up, when parties are calm and collected, and with each other’s interests at heart. Like certain types of insurance policies, it is hoped that such agreements will never be needed, but they are there to protect the parties involved, should the situation arise.

A prenuptial agreement is basically a formal agreement, drawn up between parties to protect certain assets belonging to them before they enter into the bond of marriage.

Prenuptial agreements have been around for many years in Scotland, and parties don’t have to be royal before agreeing one in advance of forthcoming nuptials.

At present, the legal status of prenuptial agreements is uncertain in England and Wales; however, in Scotland legislation makes it clear that any agreement seeking to regulate financial provision on divorce will be accepted by the courts as being legally binding, providing that they are “fair and reasonable” at the time parties entered into them.

A court may, for example, consider an agreement to be unfair and unreasonable if undue pressure was put on one of the parties to sign, without the chance to obtain independent legal advice before doing so, or, within days of the wedding itself. A court would also have grave concerns if a signature to the agreement had been obtained fraudulently or through deception.

Furthermore, if the agreement benefitted one of the parties unfairly to the exclusion of the other, or the full facts were not disclosed to a party at the time of signing, the courts might, in such circumstances, question the validity of the agreement.

A well-drafted prenuptial agreement can be helpful in avoiding expensive litigation in the future should the marriage break down, allowing the parties, and not the courts, to decide how their assets should be divided between them.

They are useful when one party has significantly more wealth, prior to the marriage, or significantly more income, or when a party wishes to ringfence specific assets or an inheritance, against a claim on divorce.

They can be of assistance, in second marriages, in protecting property for children from previous relationships, rather than that same property falling into the new matrimonial pot.

However, perhaps, at the end of the day, it might be argued that one of the main advantages of a prenuptial agreement is that it provides comfort to both parties that they are marrying for love, and not wealth.

Ewan M Campbell is an Associate and Accredited Specialist in Family Law at Russel + Aitken LLP