Pre-nups are now becoming commonplace in Scotland

24 June 2024 Family Law Megan Carling

“Love don’t cost a thing”, or so J.Lo once said. Albeit she may be re-thinking that statement now if the speculation around her split from husband Ben Affleck is true. It is reported that despite initial discussions between J.Lo and Ben Affleck that they were to enter into a Pre-Nuptial Agreement, they never signed on the dotted line, even though they have an estimated combined net worth of $550 million.

Not just for the rich and famous, a Pre-Nuptial Agreement is a legally binding contract which is prepared and signed prior to couples marrying, and is becoming more and more commonplace in Scotland today.

‘Pre-nups’, as they are commonly known, will usually seek to regulate how certain assets are to be divided in the event of separation and “ringfence” any assets which are to be expressly excluded from the matrimonial pot. The agreements can be as simple or as complex as you would like them to be and are enforceable providing the terms of the agreement were fair and reasonable at the time parties entered into it.

Pre-nups are like an insurance policy. You take them out hoping you’ll never need to use them, albeit they can be a life-saver on a dark day. Whilst there is no crystal ball to determine what the future holds and whether the assets you hold now will still be in existence at the point of separation, there are many ways to navigate and protect your position with proper legal advice. A pre-nup ensures everyone is on the same page and makes navigating a tricky separation, that little bit easier.

If you are already married and are kicking yourself that you hadn’t entered into a Pre-nup, you can still enter into an agreement in similar terms, and this is commonly known as a ‘Post-nup’. This agreement seeks to achieve the same outcome, with the only difference being it is entered into after you are legally married and not before separation. Some couples prefer this option as it is one less thing to think about and plan before the big day.

It is never a guarantee that these agreements will be fully enforceable in the event they do require to be relied upon, as it is impossible to predict every eventuality and have that reflected in a written agreement. That is why if you are considering into an agreement like this, it is imperative that you seek specialist legal advice in order to ensure the agreement does what you want it to do.

Separating from your spouse is never easy, but your future self will thank you for making life that little bit easier in the event of a separation. I’m sure Rory McIlroy is sending his Solicitor a thank you card as you read this…

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