THEY have been big news in Hollywood for some time, but prenuptial agreements are also becoming more prevalent in Scotland.
There is no collated evidence of the number of prenups, as they are commonly known, but lawyers around the country are reporting more interest in them, particularly from people who are about to marry for a second time or who have children from a prev
ious relationship.
"I have certainly found that more people are willing to ask what will happen in the case of their marriage ending," says Joanna Hardie, family law specialist with Stronachs in Aberdeen and a member of the Family Law Association.
"Nowadays, there are a lot of people who are entering into a second or even a third or fourth marriage. Both spouses may each have accumulated considerable amounts of wealth, and they may also have children from
a previous marriage or relationship that they wish to protect.
"In those cases, I think it is very important that people in such positions should take advice from a family solicitor, particularly if they wish to prevent prematrimonial property from becoming matrimonial
property, for instance if they have something which they wish to go directly to the children from an earlier relationship.
"Other people who should certainly take advice are those who are in a
family-owned business."
As someone who is both a family specialist and a hardheaded lawyer, Hardie appreciates that a prenuptial agreement isn't always the most romantic of things, but she still feels that a legal agreement or contract is the best way to resolve potential difficulties before they
become actual problems later in life.
Hardie has heard prenups described as the divorce settlement before the marriage, but she does not view them in that fashion.
"The benefit of such an agreement is that you have in place something which both parties have agreed on before the marriage.
"Being realistic, many marriages do break down, and having a prenuptial
agreement in place can take away a lot of the pain and squabbling which will accompany the end of a marriage.
"In many other areas of life, such as starting up a business or buying a house, people are happy to take legal advice, yet there is a reluctance for people to do so even though they are entering into what will probably be the biggest contract of their lives.
"At the same time, anyone who is being asked to enter into such an agreement should certainly take legal advice, so that they do know exactly what they are signing."
In one respect, Scotland is ahead of England in the nature of prenups. There has been considerable publicity over the years about whether prenuptial agreements in England are totally binding on both parties and
there have been a few court cases which have turned on this point.
In Scotland, however, prenuptial agreements are almost certainly legally
binding as they are classed along with every other form of written contract.
Hardie says: "Provided that you can be sure that neither party was forced into it and that they were not signing out of duress or force or fear, and that the information on which the agreement was based was
correct and fair at the time, then I do not see why such contracts should not be legally binding on both parties.
"Things have been different in England, where the courts have been willing to look at and alter the details of agreements. But I think a
court in Scotland would take a rather more robust view.
"As long as it could be shown that the agreement was drawn up and signed in a fair manner, I think a court here would be reluctant to
set aside its wording.
The full article contains 628 words and appears in The Scotsman newspaper.
