There's no getting away from it - pre-nuptial agreements are distinctly unromantic, but they're certainly worth considering
Traditionally the preserve of the wealthiest Hollywood stars, pre-nuptial
agreements are intended to help divide your personal assets if the
marriage ever ends. A pre-nuptial is simply a written agreement between
you and your partner, completed before the wedding, which sets out how
you wish to distribute your assets if your relationship breaks down.
Although it's really not something you wish to contemplate - after all,
no one goes into a marriage expecting it to end in divorce - this is
the unfortunate reality for some couples. So why not take a short time
to protect your personal interests, whether they are of economic or
sentimental value, at this stage? And let's face it, if you have
problems discussing these things now, how much harder would it be if
you couldn't stand the sight of each other?Fair Division
You might not have a bank balance like JK Rowling, but any financial imbalance between you and your fiancé may be worth protecting by way of a pre-nuptial agreement. Another situation that makes a pre-nuptial appropriate is where one of the spouses is bringing money and children from a previous marriage: setting down a fair division of assets at the outset can protect those children from losing money intended for them if the second marriage ends in divorce, rather than it going to the second spouse. Even where you don't have pots of money or lots of children to protect, a pre-nuptial agreement can protect items of sentimental value, such as Great-Granny's engagement ring, by making it clear that the heirloom will stay in your family for future generations, and not be claimed by your spouse in a divorce settlement. If you do decide to set out a pre-nuptial contract then it is advisable to sit down with your fiancé and work out how you want to divide your property. For example, will you both get back exactly what you put in to the marriage financially, or will one be entitled to a share of the other's earnings to reflect child care or homemaking contributions? And getting these matters out in the open can only improve communication and clarify your expectations - an added bonus from the whole process!
Demonstration of Love
Once you have reached agreement, it is usually a good idea to get legal advice - and this ideally means separate legal advice for each partner. If there is any question that one partner bullied or harassed the other into signing the agreement, then the agreement is much less likely to be looked upon favourably by the court, should that day ever come. Speaking to your solicitor can help avoid claims of undue pressure to sign the agreement, and should clear up any remaining queries you may have. Your solicitor should also be able to draft a formal agreement for you and your fiancé to sign.Scots Law
However, despite all the advantages of a pre-nuptial agreement, it is very important to bear in mind that they are not automatically enforceable in Scots law: the person who has the final decision as to who gets what after the breakdown of a marriage is not the husband, the wife or the children, but the judge. This decision will be reached on the basis of legal rules, and will take into account the financial position of both the spouses and any children. The court's first responsibility is to the children of the marriage, so it can disregard any pre-nuptial agreement if that's what's necessary to provide a home and financial support for children. Every marriage is different and these legal rules have been laid down to try to cater for every situation. So, if there are special circumstances relating to you and your partner then a pre-nuptial agreement can set down your intentions and be produced as evidence in court.Where is the love?
Finally, don't be put off by the common response that pre-nuptial agreements aren't romantic - neither is cleaning the bathroom but it still has to be done in the course of married life! And, like cleaning the house, a pre-nuptial agreement is a very practical way of showing you are willing to enter into a lifetime partnership, not just a one-day declaration of romance. Catherine Zeta Jones even turned her pre-nuptial into a demonstration of her love for Michael Douglas: she apparently signed a pre-nuptial agreement providing her with a much smaller financial settlement in the event of divorce than she would have been granted under US law - who says she only married him for his money?If you are in any doubt as to your rights before or after marriage,
or have any concerns relating to the position of your property or your
spouse's, you are advised to seek independent legal advice. Further
details of solicitors can be found at www.lawscot.org.uk
Gillian
Black LLB is a solicitor and member of The Law Society of Scotland. She
is a lecturer at Edinburgh University's School of Law, where she
teaches private law.
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