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Pre-Nuptial Agreement v Post-Nuptial Agreement

February 28, 2022 Family Law

Both prenuptial agreements and postnuptial agreements are gaining popularity in Scotland as more couples seek to address asset division before or after marriage. This trend is especially significant for individuals who enter marriage with financial assets, inherit during marriage, or have children from previous unions they wish to safeguard.

The primary distinction between prenuptial and postnuptial agreements lies in their timing of execution. However, both serve as crucial tools for safeguarding assets amidst the complexities of separation or divorce. These agreements offer invaluable protection, ensuring clarity and security during challenging times

Prenuptial agreement

A Pre-nuptial agreement is a legally binding written contract entered into before marriage or civil partnership, which sets out what will happen to some, or all, of the couple’s finances, should they separate.

Postnuptial agreement

A Post-nuptial agreement has the same purpose as a Pre-nuptial Agreement but is entered into during a couple’s marriage, whilst they remain together. They are often considered when an individual has received a large inheritance or gift during marriage and they wish to ensure this continues to pass down the family line to any future children.

This agreement can also be considered if a person’s financial situation changes in some way – perhaps due to business restructuring or a career change.

Benefits of Prenup agreements and postnup agreement

The main benefit of entering into a Pre-nuptial or Post-nuptial Agreement is peace of mind and clarity as to what would happen if the couple wish to divorce. Such agreements are not just for those with significant assets.

They can be particularly beneficial for couples marrying later in life or marrying for the second time. Both agreements are typically prepared so that they remain in force indefinitely. They can also be written in such a way that the agreement ceases to have effect after a certain number of years or when an event occurs, such as the birth of a child.

A Pre-nuptial and Post-nuptial agreement can also be changed after signing, as long as both parties agree to this.

Pre-nuptial and Post-nuptial agreements have never been fully tested by the Scottish Courts, but the general view is that a properly prepared agreement, which is fair and reasonable at the time it was entered into, will be upheld.

Furthermore, it’s essential that both parties have had ample opportunity to seek independent legal advice before signing the agreement. It’s imperative that neither party feels coerced or pressured into signing the document. Ensuring that each individual fully understands their rights and obligations is paramount to the validity and fairness of the agreement. By providing a fair and transparent process, both prenuptial and postnuptial agreements can offer peace of mind and legal protection for couples navigating the complexities of marriage and potential dissolution

The ability to enter into an agreement sits neatly with the legal right in Scotland to contract freely on certain matters without interference from a Court. Both agreements are also recognised in many but not all countries of the world.

A Pre-nuptial or Post-nuptial agreement can vary widely, whatever your intentions, circumstances or concerns may be. If you’re looking to protect assets before or during your marriage or civil partnership we can help.

Our experienced Family Law team can advise you on all aspects of such agreements, and guide you through the whole process, minimising the risk of any challenges in the future.

For information and expert independent legal advice on any related matter, please contact our New Business Team by telephone on 0141 375 1222 or by completing our online , to arrange an initial consultation with our specialist Family Law solicitors.

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