The Divorce Doctors: prenups...sensitive, but very sensible

I’m getting married in November, and everything is going well with the planning. But there’s one sticking point - my parents. They are insisting that we have a prenup agreement.  I’m an only child and it seems they want to make sure that their property and anything else that they have to leave behind in future comes to me, and then my children, in the event that my husband-to-be and I divorce after they die. However, we’re not even married yet! I want to please my mum and dad, but I feel really awkward about pushing it with my fiancé, as it might seem as though I’m not confident that our marriage will last. I don’t want to start our marriage on such a negative footing.   

Divorce Doctor Gillian Crandles says:

The issue of prenuptial agreements can be a sensitive one to raise.  However, they are becoming much more common, often for the reasons given by your parents, and also in second marriages where there are perhaps children of previous relationships to be considered. Sometimes people wonder if they are really enforceable but in Scotland, although the issue has never been fully tested by the courts, we have no reason to doubt that such agreements would be upheld, as long as they were fair and reasonable at the time they were entered into. 

It is important that both you and your fiancé are able to take independent legal advice on the terms of any agreement before it is signed. It is helpful if discussions about any agreement take place well before the wedding – both to ensure that there can be no suggestion of one party feeling pressured into signing, but also so that you and your fiancé are free to enjoy the more pleasant aspects of planning a wedding! 

I think it can be helpful to think of an agreement like this as an insurance policy. Hopefully you will never need the agreement, and it can stay in the bottom drawer, but if things do go wrong in the future you have already built in some protection. It will also help take away some of the angst that a separation brings - by doing some forward planning well before any disputes ever arise. Sadly many marriages do end in divorce, and although it can seem unromantic, some pragmatism at this stage can in fact make your relationship stronger.

Under Scots Law there is already a degree of protection for family wealth being passed down the generations as your parents envisage.  Typically on divorce spouses need to split what is known as “matrimonial property”, which is property acquired by both or either of them during the course of their marriage. It specifically excludes property acquired by way of gift or inheritance from third parties – for example your parents. However, where you can then run into difficulties is when that inherited or gifted wealth is used to acquire other assets – in this way non-matrimonial property is transformed into matrimonial property. In these situations a prenup can be useful as it can be drafted so as to also protect those assets which were acquired from non-matrimonial sources. 

If the issue of the prenup is just too much of a hot potato to deal with before the wedding, your parents could at a later date insist that you and your husband agree a postnuptial agreement before making any substantial gifts to you. I am sure that with some sensitivity and understanding on both sides this is an issue that you and your fiancé can deal with positively, and then get on with enjoying the rest of your wedding planning – good luck!

Gillian Crandles is a divorce and family law expert at Turcan Connell. 

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