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Prenuptial Agreements

A prenuptial agreement provides certainty to couples entering into a marriage or civil partnership about how assets will be regulated in the event of the relationship breaking down. Prenuptial agreements can ring fence assets or category of assets acquired prior to the marriage or civil partnership, with those assets not ring-fenced by the agreement then being available for division in accordance with the usual rules governing division of assets.

A Prenuptial agreement is at its core an insurance policy.  The hope and intention with a Prenuptial agreement, as with any other insurance policy, is that once taken out it will never be needed.

If you and your partner agree in principle that you want to enter into a Prenuptial agreement, the next question is what it will say.  In Scotland, many Prenuptial agreements are simply intended to extend the protection already offered by our legislation to certain types of assets.

In Scotland, assets acquired prior to the marriage (except an asset acquired as a family home or furnishings within a family home) are not generally ‘in the pot’ for division on separation or divorce.  The same applies to inherited assets or assets gifted from a third party. However, that protection only applies for so long as the asset remains in the same form.  For example, if someone owned an investment flat prior to the marriage and still owned the same property at the time of separation, the investment flat would not form part of the pool of assets available for division. However, if that same investment flat had been sold during the course of the marriage so that a different flat could be acquired in the owner’s sole name, the new flat would be matrimonial property and its value would be available for division.  The spouse who owned the flat might be able to argue that the non-marital source of funding for the new flat justifies the value of that asset being divided other than equally between the parties but that is a discretionary argument which might succeed, or it might not.

While in that example, there has been a very deliberate change in an asset, sometimes assets can fall into the pot unintentionally – one example of this might be the re-structuring of a business entity.

For that reason, many Scottish Prenuptial agreements will therefore look to not only confirm the protection which is to be afforded to assets which would be protected by law even without a Prenuptial agreement, but also to extend that protection to cover assets deriving from those categories of non-matrimonial property. Another common situation we see is with second marriages later in life where one spouse has worked hard building up a business prior to the marriage, and wishes to ensure that their children, rather than a new spouse who has had no involvement in the business, benefit from those pre-marital efforts if there is a separation.

In Scotland, we have specific provisions in our legislation to the effect that if spouses enter into an Agreement in respect of financial provision on divorce then it will be binding unless it is found to be unfair and unreasonable at the time it was entered into.  While the Courts will not ignore the consequences of the Agreement for each party in such an analysis, the primary focus is upon the circumstances surrounding the entering into of the Agreement.  Case law is clear that just because the terms of an Agreement result in an unfair division of the matrimonial property does not make the Agreement in of itself unfair and unreasonable.

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Frequently Asked Questions

What is family law?

Family Law is the umbrella term for legal matters relating to the family. It includes separation, divorce, child-related issues (including adoption), maintenance, division of assets and protective orders in cases of domestic violence. It also covers asset protection aspects such as Pre-Nuptial, Post-Nuptial and Cohabitation (or “Living Together”) Agreements.

Can you act for me if I’m outside Scotland?

We have clients from all parts of the UK, and across the world. The team has three dual qualified lawyers, who can advise on the law of England and Wales as well as the law of Scotland. We also have significant international experience. Our Head of Department, Philippa Cunniff, is one of only a handful of lawyers in Scotland who is a Fellow of the International Academy of Family Lawyers.

Do I need to have a ‘legal separation’?

Whether are not you are separated is a matter of fact – if you are no longer cohabiting as spouses/partners, you are separated. There is a legal process known as judicial separation, that is very rarely used. Most people talk about being ‘legally separated’ when they have a formal Separation Agreement regulating the issues arising out of their relationship breakdown.

Do I have any rights if I’m not married?

Since 2006, it has been possible for former cohabitants to make financial claims in the event of the relationship ending. Such claims are limited in scope and are subject to very strict time limits (at the time of writing, claims must be made within a year of the cohabitation ending). It is essential to seek expert advice at the earliest possible opportunity.

  • Anonymous
  • Family Law

“I am tremendously grateful to you for all that you have done to get me to this point – both over the long period during which the Agreement was negotiated and at various difficult moments since then.  It is a huge relief to finally have this resolved, and your perspective and expertise have been absolutely indispensable.”

  • Pauline
  • Family Law

“I wanted to thank you for encouraging a tasteful and diplomatic separation. It’s made a huge difference to an already difficult time.”

  • Lynn
  • Family Law

“I just wanted to thank you for all that you have done to support Andrew and ourselves. Finally, we have the right outcome and the boys will have a more secure long term future.”

  • Neil Walls
  • Family Law & Residential Conveyancing

“Gilson helped me understand the best way of getting these three pieces of work done. Very approachable and friendly staff and was very flexible and understanding of my needs as a client. Were very patient with me when I was struggling to understand the legal jargon. Would confidently use Gilson Gray’s services again.”


  • Anonymous
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“I have always found Denise Laverty to be an exceptional lawyer… on the basis of her professional legal excellence.”

  • Family Law Testimonial

Firstly I want to say a heartfelt thank you for your support over the last few weeks. I’m aware that your first duty is to the court, but I could not have done what I needed to do recently without your calm and authoritative counsel. You gave me the freedom to make my own decisions. I’m also aware that you and your team worked extremely hard to prepare me for court at very short notice.

  • Family Law Testimonial

Denise has consistently provided well balanced expert advice, throughout a long drawn out divorce and custody case. Denise’s in depth knowledge and experience of both Scottish and English Divorce law, has guided me through a very difficult period in my life. Her reasoned approach, often tempering my naturally emotional reaction to events, was always well timed and well placed, hindsight proving her judgement correct on all occasions.

Family Law Team

Phillipa Cunniff Head shot BLUE 2 L website 2

Philippa Cunniff

Partner, Head of Family Law

Sally Nash Head shot BLUE 3 L website 2

Sally Nash