Prenuptial Agreements in Scotland

Legal Framework

Section 9(1): Principles for Financial Provision on Divorce

According to Section 9(1) of the Family Law (Scotland) Act 1985, Scottish courts must apply specific principles when determining financial arrangements following a divorce. One of these principles states that “the net value of the matrimonial property should be shared fairly between the parties to the marriage.”

Section 10(1): What Constitutes a Fair Share

Section 10(1) further clarifies that a fair division is generally understood to mean an equal split, unless special circumstances justify a different distribution.

Section 10(6): Role of Agreements

Section 10(6) explains that “special circumstances” may include “the terms of any agreement between the parties on the ownership or division of any of the matrimonial property.”

Section 16(1): Agreements on Financial Provision

Section 16(1), titled “Agreements on Financial Provision,” provides that a court may set aside or modify a prenuptial agreement if it determines the agreement was “not fair and reasonable at the time it was entered into.”

Common Uses of Prenuptial Agreements in Scotland

In practice, prenuptial agreements in Scotland are often used to protect or “ring-fence” specific assets, keeping them outside the definition of matrimonial property. While it is less common, some agreements attempt to override the statutory rules for property division entirely.

Prenuptial agreements may also address other matters, such as spousal support (known as aliment) after separation, or inheritance rights in the event of a partner’s death.

Legal Nature and Enforceability

In Scotland, prenuptial agreements are generally treated as legally binding contracts. Like other contracts, they are subject to legal defenses, such as claims of unfairness or lack of consent.

However, Section 16 of the Act introduces an important exception: if a prenuptial agreement was not fair and reasonable at the time it was signed, a court may decide not to enforce it.

Conclusion

While prenuptial agreements are valid and enforceable in Scotland, they must be drafted with care to ensure fairness and reasonableness at the time of signing. Doing so helps avoid future legal challenges.