Pre-Nuptial Agreements

Many couples choose to protect pre-marital property or gifts which are to be utilised to purchase matrimonial property by entering into a pre-nuptial agreement or an agreement during the marriage. Whilst it is not possible to contract out of the provisions of The Family Law (Scotland) Act 1985 and subsequent legislation, the courts are obliged to fully consider the terms of any agreement between the parties in the event of a subsequent dispute. We have considerable experience in drafting such agreements and are delighted to assist. 

In most relationships, one party may have a greater capital contribution, and this can be recorded in a pre-nuptial agreement to accurately reflect that contribution in the unfortunate event of a breakdown in the relationship. If required, a pre-nuptial agreement will clearly record pre-marital assets.

 

Many couples choose to protect pre-marital property or gifts which are to be utilised to purchase matrimonial property by entering into a pre-nuptial agreement, or even an agreement during the marriage. Whilst it is not possible to contract out of the provisions of the Family Law (Scotland) Act 1985, and subsequent legislation, the Courts are obliged to fully consider the terms of any agreement between the parties in the event of a subsequent dispute. Rowena McIntosh has considerable experience in drafting such agreements, which are prepared to make clear the parties' intentions that certain assets are to be excluded from any claims on termination of the parties' relationship. It may be the case that one party has built up significant property prior to the marriage, and indeed possibly prior to the relationship forming. That person may wish to protect the pre-marital property and to have recognition of this, contractually provided for, prior to the marriage. Perhaps one party has inherited significant assets prior to the marriage. Whilst the Family Law (Scotland) Act 1985 provides that inheritances and gifts from third parties do not form part of matrimonial property, there can be, and frequently are, complications if those gifts or inheritances are subsequently utilised for matrimonial purposes, for example purchasing a matrimonial home or family home. Unless left entirely separate, and clearly identifiable, those funds would then become matrimonial property and instead of being subject to the exclusion provided for in the Family Law (Scotland) Act 1985, they become a "source of the funds" argument, with no certainty as to how they would be dealt within the context of a Court action.

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