Planning for the future is sensible, not cynical. You insure your car or home hoping you will never need to use it. A pre-nuptial agreement should be treated the same way. It offers clarity, protection and peace of mind, helping couples move forward with confidence and avoiding unnecessary conflict if life does not go to plan.
Pre-nuptial agreements are becoming increasingly common in Scotland and are not just for the wealthy or famous. Having a pre-nuptial agreement also helps both parties fully understand the legal and financial implications of entering into marriage, ensuring that expectations are clear from the outset.
Who Can Get a Pre-Nuptial Agreement?
Anyone planning to marry can enter into a pre-nuptial agreement. Many couples use them to protect assets, reduce uncertainty and avoid future disputes. Speaking to a Scottish family solicitor early allows the agreement to be tailored properly to your circumstances.
Why Consider a Pre-Nuptial Agreement in Scotland?
Financial matters on divorce in Scotland are governed by the Family Law (Scotland) Act 1985. The law focuses on “matrimonial property” – assets built up during the marriage – and aims for fair sharing on separation. Assets owned before marriage are normally excluded, but they can become matrimonial if their form changes during the marriage. For example, a home owned by one spouse pre-marriage would be excluded, but if sold during the marriage, the sale proceeds become matrimonial property.
A pre-nuptial agreement allows couples to preserve what they bring into the marriage and agree in advance how future assets should be treated. Some couples broadly follow the legal default with small adjustments. Others choose more tailored arrangements. What matters is that the agreement is fair, clear and properly prepared.
What Can a Pre-Nuptial Agreement Cover?
A well-drafted agreement can address most financial issues, including:
Property: excluding a home owned before marriage, protecting future purchases, dealing with rental properties and setting rules for mortgage contributions and equity.
Businesses: protecting a business formed before marriage, agreeing how a business started during marriage is treated and fixing valuation methods.
Inheritance and Gifts: excluding inheritance and gifts, even if they later change form, such as inherited cash used to buy another asset.
Pensions: excluding pre-marital pension rights and setting how pension growth during marriage will be treated, often with specialist advice.
Bank Accounts and Investments: protecting pre-marital savings, tracking joint contributions and maintaining separate portfolios.
Personal Possessions: recording valuable items such as jewellery, art or furniture and agreeing ownership on separation.
Children: making financial provision for children, while recognising the court always retains control over care arrangements.
Pets: agreeing with whom a pet will live and who will be responsible for ongoing costs.
Practical Examples
- You own a property before marriage. A pre-nuptial agreement can exclude it — and even protect its value if you later sell and buy another home.
- You start a company during marriage. The agreement can fix a valuation method and provide fair compensation to your spouse while allowing you to retain control.
- You are re-marrying and want to protect your children’s future inheritance. A pre-nuptial agreement can ring-fence pre-marital assets and preserve your estate planning intentions.
Getting It Right
Ideally both parties should receive independent legal advice, consider providing full financial disclosure, sign well in advance of the wedding and ensure there is no pressure or duress. The agreement should also be reviewed if circumstances change.
Next Steps
If you are considering a pre-nuptial agreement, speak with Gibson Kerr’s experienced family law team. Early advice helps ensure the right structure is in place. A clear agreement can reduce stress, protect both partners and allow you to begin your marriage with confidence and security.
Useful resources
Read the Family Law (Scotland) Act 1985: https://www.legislation.gov.uk/ukpga/1985/37/contents
Prenuptial Agreements – Protecting Your Important Assets: https://gk.cazincdev.com/prenups-cohabitation/prenuptial-agreements/
Should you wish to discuss any of the above, please get in touch with our team and one of our family solicitors will be able to meet with you to advise you on your options.
DISCLAIMER
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.