What do you know about prenuptial agreements? Tom Cruise and Katie Holmes have one, as do Michael Douglas and Catherine Zeta-Jones.  But what are they? Should you have one? Are they enforceable? Or are they just for the rich and famous?

There were 28,480 marriages in Scotland during 2010, an increase of almost a thousand on the previous year.  Considering this, and the fact that the average age at which people marry for the first time has increased by two years in the last decade, to 32.5 years for men and 30.7 years for women, it is perhaps not surprising that an increasing number of people are seeking legal advice prior to marriage with a view to protecting their individual assets in the event of a subsequent divorce.

What is a prenuptial agreement?

• In basic terms, it is a contract entered into between two people who intend to marry with a view to protecting certain assets in the event of a future divorce. 
• An agreement where parties wish to protect assets owned by them prior to marriage, for example, for the benefit of children of a previous relationship.

Are prenuptial agreements enforceable in Scotland?

• It is a well-fuelled myth that prenuptial agreements (also known as antenuptial agreements or marriage contracts) are not binding in Scotland. 
• The general rule, is that two adults of sound mind can agree, prior to marriage, the terms of a contract determining future financial provision which cannot subsequently be varied by a court on divorce. 
• The courts generally respect an individual’s right to contract in this way, and would be slow to intervene.  This is especially the case if both parties had obtained legal advice prior to signing the agreement, and its terms were considered “fair and reasonable”.

Whilst it is hoped that the majority of marriages will not fail, and the terms of prenuptial agreements will never require to be given effect to, they provide individuals with a clear picture as to what would happen in the event of a divorce occurring.  There are however, complex legal matters to be considered when drafting such an agreement and it is important that you seek advice from a lawyer with particular experience in this area as early as possible.  TC Young have experienced prenuptial agreement lawyers in both our Glasgow and Edinburgh office; get in touch if you’d like to discuss your circumstances further.