Did you know that Scottish prenups are not automatically legally binding under English law? The courts still have discretion, which is something you might want to think about in a country like the UK. Whether you’re a Scot marrying an Englishman or there’s a possibility of you moving between countries in the future, or you’re simply worried about protecting your assets and not leaving a loophole in the paperwork, you should be aware of the differences in your prenuptial agreements. Take a look at our guide to understand the ins and outs.
What is a prenup?
Starting off simply, a prenup, or a prenuptial agreement, is a legal contract designed to protect the financial assets of the members of a couple before they get marriage. Alternatively, there is a post-nuptial agreement, which, as the name suggests, is agreed after marriage.
They allow the couple to decide on the division of their assets ahead of time, rather than leaving it up to the courts to determine in case of divorce. It’s seen as a less ugly and messy way to deal with the possibility of a divorce. It can cover property, alimony, parenting responsibilities, inheritance and debt obligations.
Not automatically binding
However, a prenup doesn’t guarantee no mess if a divorce is on the table. As mentioned, prenups can be fought in court and Scottish prenups don’t guarantee legally binding under English law. This isn’t some old argument that wasn’t addressed either, since the original framework was established in a 2010 Supreme Court case.
However, English courts will typically uphold Scottish prenups as long as they are voluntary agreements, both parties had disclosure of assets, and the terms are fair.
So, what does “fair” mean to the law? Fairness is determined based on circumstances at the time the marriage ends rather than when the prenup was signed. The judge will consider if enforcing the prenup would leave one spouse in a “precarious financial position” and will override if it’s determined that one party would struggle financially.
And of course, every breakup is complicated more by children. A judge will also look at the welfare of any children involved and can deviate from a prenup to provide for the children’s needs.
So, are Scottish judges more lenient?
Afraid not. It’s known that generally Scottish courts are more willing to override prenups than English courts. There is even a debate on whether Scottish law recognises prenups signed under English law. Some experts argue Scots law does recognize English prenups, but they can still be challenged in Scottish courts, while others contend that English prenups have no legal standing in Scotland and are not valid.
What can you do about it?
If this is something you’re facing, whether considering it for an upcoming wedding or an upcoming divorce, or you’re simply thinking about moving together, it’s important to get the right legal advice. Those moving between England and Scotland should seek guidance on the status of existing English and Scottish prenups and each party should seek independent legal advice before signing your prenup in either England or Scotland. There is an uncertainty around English and Scottish prenups that has yet to be remedied.
Conclusion
If you’re considering taking another look at your prenup or you need legal advice before signing it, contact us today to get expert advice and an understanding of Scottish and English prenup law.
