Pre-Nups – not just for Hollywood A-listers
Since the news that Kim Kardashian has reportedly filed for divorce from Kanye West emerged the
media has been awash with speculation about what’s at stake for the couple. It is believed, however,
that ‘KimYe’ have a prenuptial agreement in place meaning that the end of their marriage may not
become as messy as one might imagine. Prenuptial Agreements of ‘Pre-Nups’ are the norm in Hollywood
but they are not reserved for only the rich and famous. Prenuptial Agreements are becoming increasingly
common in Scotland particularly where people are marrying at a later stage in life, or perhaps remarrying.
We have completed this short guide to help dispel some of the myths surrounding Prenuptial
Is a Prenuptial Agreement for me?
Prenuptial Agreements are typically used:
- Where there is unequal wealth coming into the marriage
- In a second marriage particularly where either of both of the parties did not enjoy their experience of the divorce process first time around or there are children of previous relationships to be considered.
- Where someone is to receive ‘family wealth’ during the marriage and there is a desire to ‘ring fence’ this wealth so that it is protected in the event of a future divorce.
- Where someone is to inherit a family business.
What is the purpose of a Prenuptial Agreement?
The beauty of Prenuptial Agreements is that they can be drafted to suit your specific
circumstances. Generally speaking, they are designed to exclude or reduce the provisions of the
law regarding matrimonial property and financial provision on divorce/separation. It can include
as many, or as little assets that you wish to protect. A Prenuptial Agreement can also be used to agree in advance settlement terms in the event that the marriage breaks down in the future.
What are the benefits of Prenuptial Agreement?
The advantages of a Prenuptial Agreement include:
- Peace of mind as to what would happen in the worst case scenario of a divorce.
- Avoiding uncertainty and, therefore, disputes.
- Reinforcing that the parties are together for the right reasons and not because one party is wealthy
Are they worth the paper they are written on?
- The short answer is yes. Although a Prenuptial Agreement can be set aside or varied by the court, Scots Law has a strong ethos of allowing individuals the freedom to contract, and the courts are loathe to interfere with an Agreement which has been entered into between two adults of sound mind.
- The primary concern of the court is to ascertain whether the Agreement was fair and reasonable at the time the parties signed it. The Court will also consider whether the Prenuptial Agreement was entered into willingly and whether both parties had the opportunity to take independent legal advice before signing the document.
- It might be worth thinking of the Prenuptial Agreement as a safety net. The sad fact is that some marriages do end in divorce. By entering into a Prenuptial Agreement you may reduce some of the anxiety that a separation inevitably brings. Hopefully you will never need to refer to the Agreement again, but should you find yourself in the worst case scenario you have already built up a degree of protection.
- Discussion about any Prenuptial Agreement should take place well in advance of the wedding primarily to ensure that there can be no suggestion that one party felt pressured into signing the Agreement but, also, to allow you both to focus on the more enjoyable aspects of planning a wedding!
If you would like to discuss Prenuptial Agreements in more detail please contact a member of our Family Law team at FamilyLawTeam@raeburns.co.uk