Prenuptial agreement

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Document overview

Marry knowing that it is for love and not money. This prenuptial agreement (also known as a pre-marital agreement) helps you to sort out your affairs, plan how you will divide your current and future wealth between you, and tie up loose ends, if you decide to divorce or separate in the future. It will help you control your ownership of important assets such as your house, sentimental possessions and your business.
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  • Scotland
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  • Length:17 pages (4800 words)
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About this document

A prenuptial agreement sets out how assets and liabilities will be divided if you separate permanently or if your marriage ends.

Making a plan in advance should help you avoid expensive divorce settlements, help you keep items of sentimental value such as family heirlooms or property, and help you control who inherits your wealth.

Many people consider it to be unromantic to plan for what would happen on break-up shortly before a wedding or civil partnership. However, preparing a prenup emphasises that the reason for marriage is love and not money, and can give both people confidence about what will happen should the marriage fail.

Why use this agreement

  • provides security during and after marriage to both people
  • avoids future disputes over how assets should be split and what each person contributed
  • helps speed up the divorce process and saves divorce costs
  • helps ensure that items with sentimental value remain with the person to whom they matter most
  • helps ensure that the people you choose (such as children from an earlier relationship) inherit your wealth
  • prevents your wealth from being given away shortly before break-up
  • helps protect business assets from being split and sold
  • makes a separation less emotionally stressful by removing the need to negotiate over as many things

Are prenuptial agreements legally binding?

Prenuptial agreements are not legally binding, despite a recommendation by the Law Commission to make them so.

A UK court will take one into consideration, but remains free to impose any other financial settlement the judge rules appropriate to the circumstances, particularly with respect to arrangements for children.

A settlement is more likely to be in line with any nuptial agreement the couple made if the agreement:

  • is fair and reasonable, both when it was made, and at separation

  • is flexible and allows for review and modification at a later date, such as following the birth of any children

The parties must demonstrate that:

  • each person considered and understood the implications of entering into the agreement, and were truly happy with it.

  • it was not signed under duress or coercion, and not entered into in haste

  • each person gave full disclosure about their personal wealth at the time of signing

To satisfy these conditions, couples are likely to have to:

  • take separate, independent legal advice (not necessarily from a solicitor) as to the implications of their agreement

  • sign the agreement well before the marriage or civil partnership so that there is a sufficient “cooling off period” in which to back out or change the terms

It will always be the case that a well written, sensible, prenuptial agreement is highly likely to influence the judge's decision as to what the final division should be.

Alternative documents

We also stock a simpler version of this document that has been written for couples who are likely each to be financially independent before the marriage or partnership and for whom the concern is about ensuring that wealth and assets remain in the possession of whichever one brought them in, should the marriage fail.

We expect that this alternative document will be more suitable for older couples who have already accumulated wealth, and who perhaps are marrying for a second time.

Contents

This agreement has been written to help you to comply with the suggested legal requirements.

This document covers a very wide range of possible outcomes and also deals with many matters to be agreed during your marriage. This coverage is not legally binding for the reasons discussed above, but enables you to define your intentions over broad areas.

There is extensive coverage of property, possessions, investments.

Children arrangements are covered only broadly and briefly, because a judge will make an order based on what he sees at the time of separation.

This agreement covers the following:

  • the parties' personal details
  • relevant dates and application of principles likely to be required by law
  • ownership of the home now
  • separate ownership of property and possessions
  • many alternative arrangements for ownership of assets
  • joint bank account
  • sharing living expenses
  • children arrangements and after separation
  • property of each party remains his own
  • dealing with family home
  • children arrangements
  • financial support of children
  • financial maintenance of one of you by the other
  • prevention of one person reducing joint wealth before separation by giving away assets
  • dealing with family company and / or jointly owned business
  • capital calculation and transfer
  • promise of confidentiality
  • if one of you should die
  • other legal provisions to protect your interests
  • final statement of understanding of legal requirements
Sample prenuptial agreementSample page from the prenup

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Recent reviews

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13 November 2018
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