POST-NUPTIAL AGREEMENTS SOLICITORS ABERDEEN & STONEHAVEN

In Scotland, many people are familiar with the concept of a Pre-Nuptial Agreement however Post-Nuptial Agreements are often overlooked or perceived as representing a red flag in a marriage.  There are many reasons why a Post-Nuptial Agreement can be beneficial and should be considered in order to ensure that assets are protected in the event of a relationship breakdown.  Although it is hoped that a Post-Nuptial Agreement will never have to be enforced, having one in place can assist with a clean break and avoid going to the courts in the event of separation. 

Our family law solicitors at James & George Collie can advise you on all aspects of a Post-Nuptial Agreement, including:

• What is a Post-Nuptial Agreement? 
• Why might I need a Post-Nuptial Agreement? 
• When should I get a Post-Nuptial Agreement? 
• Can a Post-Nuptial Agreement be challenged? 

If you require any guidance and legal assistance for a Post-Nuptial Agreement, get in touch with our team (link to get in touch page) today.

WHAT IS A POST-NUPTIAL AGREEMENT?

A Post-Nuptial Agreement is an agreement between spouses or civil partners that regulates and determines the division of assets in the event of a separation.  Unlike Pre-Nuptial Agreements, Post-Nuptial Agreements are made after marriage rather than before.  Post-Nuptial Agreements can create a more solid foundation for marital and family relationships by introducing clarity and transparency.

WHY MIGHT I NEED A POST-NUPTIAL AGREEMENT?

Post-Nuptial Agreements allow couples to protect their assets and ensure that, in the event of a separation, plans have been made to determine how assets will be divided in a way that a couple agree upon together.  Post-Nuptial Agreements allow arrangements for the division of assets to be made whilst a couple remain amicable with a view to avoiding lengthy and costly court proceedings in the event that the relationship breaks down. 

You do not need to have considerable wealth for a Post-Nuptial Agreement to be worthwhile.  The clients we work with have assets of varying types and values.  However, they share the wish to protect themselves and their families in case their circumstances change in the future.  Acknowledging that every family is different, Scots law allows couples to make the arrangements that are most suitable for them under a Post-Nuptial Agreement.

WHEN SHOULD I GET A POST-NUPTIAL AGREEMENT?

Post-Nuptial Agreements can be useful for all couples.  The Agreement can be tailored to suit you and your spouse’s needs and there is no limit on the assets that can be included.  However, it can be particularly advisable to make a Post-Nuptial Agreement in some specific situations such as:

• One spouse receives an inheritance after marriage and wants to clarify what will happen to the capital in the event that the relationship breaks down;
• Where one spouse is involved in a family business, helping to ensure that control of the business is preserved within the family in the event of a separation;
• For individuals who have entered a second marriage or have children from a previous relationship. Assets can be ring-fenced under a Post-Nuptial Agreement to ensure that earnings or assets do not go to the other partner’s children from a previous marriage under a Will or upon death;
• Where spouses considered a Pre-Nuptial Agreement but did not get round to making one;
• The parties to the marriage have unequal wealth or one spouse has acquired substantial amounts of property in the course of the marriage.

CAN A POST-NUPTIAL AGREEMENT BE CHALLENGED?

Unlike in England, Pre-Nuptial and Post-Nuptial Agreements have been the legal norm in Scotland for centuries and Scots law allows couples to make these ‘marriage contracts’. 

It is possible to challenge a Post-Nuptial Agreement in Scots law under the Family Law (Scotland) Act 1985 which allows a court the discretion to vary or set aside Agreements where they are found not to be fair and reasonable.  However, it should be noted that the Scottish courts have shown a willingness to uphold Post-Nuptial Agreements, even in circumstances whereby the Agreement reflects highly unequal shares of property in the event of separation, as this does not mean that the Agreement is necessarily unfair. 

Under Scots law, the courts are focussed on whether the Agreement was made under fair circumstances at the time.  If a Post-Nuptial Agreement was entered into by parties making an informed decision, without undue influence or pressure, then the Agreement they entered into will be binding. 

It is important that both parties considering a Post-Nuptial Agreement seek independent legal advice by an experienced family lawyer. 

CONTACT OUR POST-NUPTIAL AGREEMENT SOLICITORS BASED IN ABERDEEN & STONEHAVEN TODAY

For specialist legal support with preparing a Post-Nuptial Agreement adapted to your personal circumstances, or for advice on any other family law related matter, please contact Duncan Love, Susan Waters or Louise Armstrong by telephone on 01224 581581 or fill in our online contact form.