What is a Prenuptial Agreement?

When a couple decide to make the lifelong commitment to each other and to get married, they are doing so without the expectation of separating. Due to the growing number of relationships breaking down it is of vital importance one considers all possibilities of the future before they get married. More and more spouses are choosing to enter in Prenuptial Agreements as a way of protecting pre-martial assets.

A Prenuptial Agreement is essentially a legal agreement between two parties setting out how assets should be divided if they later separate/divorce. There is a common misconception that they are not legally binding or held up in court, however, there are many recent rulings upholding properly executed agreements.

What factors will the court take into consideration?

In recent years Prenuptial Agreements have become increasingly popular for individuals looking to protect either their own pre-martial assets (assets accumulated prior to the marriage) or in many cases preserving their family’s wealth e.g. a future inheritance, shares in a family business or other family-owned assets, which will ultimately be theirs one day. Prenuptial Agreements can provide clarity on how you wish to protect the assets each party brings to the marriage and also how to divide assets accumulated during the marriage.

There are several factors the court will take into consideration when considering the weight of a Prenuptial Agreement. These include;

  • Each party must have entered into the agreement freely
  • The agreement must be fair and meet the needs of both parties
  • Each party requires separate independent legal advice.

If all the above are met, a court will usually uphold the agreement. It is therefore important that you seek legal advice to ensure the agreement is drawn up appropriately.

How to distribute assets when entering into the Prenuptial Agreement?

The Family Court has wide discretion when dealing with financial matters and still retains the overriding discretion as to how to distribute assets and income on divorce. However, if the parties have entered into the Prenuptial Agreement and followed the above criteria, it can increase one’s certainty on how assets will be divided.

It can be difficult to raise the subject of a pre-nuptial agreement with your partner, after all, you are planning on spending the rest of your lives together and therefore why do you need one. However, over the last few years, we have seen a large increase in parents insisting on their child entering into a prenuptial agreement, which can relieve some pressure from the spouse proposing the prenup.

How a pre-nuptial agreement can help individuals who have previously been through a divorce?

Pre-nuptial agreements are also very popular for those individuals who have previously been through one or multiple divorces and want to avoid the time and money spent going through them again. With a pre-nuptial agreement, they can detail clearly their intentions and ensure they protect their individual assets and if applicable children from a previous marriage.

Need more information?

McEwan Fraser Legals Family Team has vast experience in drafting individual pre-nuptial agreements to suit your requirements and would be delighted to assist you. Please contact us on 0131 524 9797 or fill out the form below if you have any questions or would like to discuss any of the above in further detail.

Note: This article is for information purposes only and does not constitute any form of advice or recommendations. You should seek proper professional advice from this firm before making any decisions.

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