Surge in post-nup deals for late bequests and second marriages

In a second marriage involving stepchildren, which side inherited wealth comes from can be an emotive issue.
In a second marriage involving stepchildren, which side inherited wealth comes from can be an emotive issue.
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Wealthy individuals and celebrities have long insisted on pre-nuptial agreements – legal deals to divide assets in case of the relationship breaking down at a later date.

But now, a rise in the number of second marriages – and the increasing longevity of older family members, meaning that inheritances are occurring later in a couple’s relationship – is fuelling demand for “post-nuptial agreements”.

Scottish lawyers say that a change in financial circumstances long after marriage, particularly in the case of a second marriage where larger, complicated family structures could cause arguments in the case of divorce, are sparking the creation of post-nuptials, where spouses’ assets are ring-fenced in the event of divorce.

Experts says that often, a couple with no significant assets at the start of their marriage are later on inheriting money or property from a family member, or creating a business which they do not want to be regarded as a matrimonial asset.

Alison McKee, partner and head of family law at Lindsays, which has offices in Edinburgh, Glasgow and Dundee, said the firm had seen a 125 per cent increase in requests for post-nuptial agreements in 2018 compared with 12 months earlier.

“When I started practising, people had barely heard of pre-nups, they were something you saw on Dallas and Dynasty on TV, but now they are quite common,” she said. “With post-nups, people are becoming more aware that they can take control of their own finances.

“Often, people are inheriting, or being gifted assets after their marriage which aren’t matrimonial assets to be put into the joint pot to be divided if the marriage ends.

She added: “Because elderly people are living longer than ever, inheritance by their children often takes place after those children are married. In the event of a divorce, the inherited wealth from one side rather than the other can be a complicating factor, and we are increasingly seeing a desire to mitigate against that.

“It’s not just the super wealthy who are doing it – it doesn’t have to be a large sum of money involved. If it is money your parents have worked very hard for and they wanted it to go to you and perhaps your children, it is quite emotive and can be more of a personal thing.”

Naeema Sajid, family law partner at Aberdein Considine in Edinburgh, said that many younger people were taking out similar agreements after moving in together – as well as people who are in a second marriage who may have been burnt in an earlier relationship.

“We have seen an increase in recent years of both the number of post-nups and also agreements after people move in together,” said Sajid. “Often with younger people, it is because their parents have put money into a house they have bought together – and they want to make sure that if their child’s relationship breaks down, that money is protected.

“People often come to it later because they don’t want to bring it up when things are going well early on in a marriage – they are scared to rock the boat.”