Family law experts say people are trying to protect their assets in times of financial difficulty.
Increasing numbers of Scots are also marrying for a second or third time and have learned a “pre-nup” can avoid lengthy and expensive court battles.
The surge has also been linked to people marrying later in life, after building up a career and assets they want to protect.
Glasgow law firm HBM Sayers, which has a dedicated family law team, has seen a 20% rise in pre-nups in five years.
Solicitor Siobhan Kelly said: “In a recession, people are more aware of their financial vulnerability and they’re more aware of protecting themselves.”
Ms Kelly said pre-nups were no longer only for the rich: “We are seeing people from all walks of life seeking pre-nups, especially professionals, who already have an independent wealth behind them and want to protect it.
“It can seem very unromantic – ‘will you marry me? Sign here’. People genuinely do still want their marriage to work, and trust is still a massive word, but the reality is that there have been divorces I’ve seen where a pre-nup could have made things a lot easier for everyone.”
Her colleague Caroline Gillespie said: “A lot more people are actually entering into agreements before they start living together.
“They sign up to a cohabitation agreement and again it’s about preserving what they feel they’ve worked hard for.”
Family law professor Kenneth Norrie of Strathclyde University said the increase in cohabitation agreements may result from the Family Law (Scotland) Act 2006 allowing financial claims when cohabiting couples split up.
He said : “The increase in pre-nuptial agreements is more difficult to explain but one explanation might be the increase in second marriages, for on a second marriage parties may well be keener than with their first to ensure they, and not the law, maintain full control of what happens to their property at the marriage’s termination.”
John Fotheringham, director of family law at Lindsays Solicitors, agreed that the increase in pre-nups had been significant in recent years.
He said the increase in second marriages and a desire to protect children was behind the change: “When people have gone through a divorce where there wasn’t a pre-nup in place, they want to protect themselves the second time around just in case the second marriage also breaks down,” he said.
“People may also want to protect the interests of their children from the previous marriage.”
He added: “As I tell my clients, a pre-nup is as romantic as a pair of beige polyester bed socks, but it is much more useful.”
Nicola Kerr, a family lawyer with Morrisons solicitors, said the fact that banks and building societies are no longer lending as readily as they did before to the recession means family members are more often helping with large purchases, and people wish to protect those assets.
She said: “Generally speaking, people nowadays are more aware of the fact that marriage may not necessarily be forever; since a significant proportion of marriages do break down, and divorce is more socially acceptable than it was 50 years ago.
“Many people wish to protect pre-marital wealth and have a degree of certainty as to how certain assets will be dealt with in the event of separation and divorce.”
HBM Sayers is among dozens of legal firms nominated for the Law Awards of Scotland, which take place this Thursday in Glasgow. The Herald is media partner for the awards and will publish the names of the winners on Friday.
