The case of Radmacher v Granatino continues to shine a light on the key differences between divorce law in England and Scotland, and what this can mean for you…
With nearly half of 18 to 24 and 45 to 54 year olds stating they’d be willing to sign a pre-nuptial agreement, it’s more important than ever to fully understand when and why to get an agreement, and what the agreement actually means in your country.
The well-publicised English Radmacher case was the catalyst for an increasing acceptance of pre-nuptial agreements by the courts in England and Wales. While Mr Granatino challenged the standing of the agreement, the Supreme Court ruled against him and stated that the agreement must carry ‘decisive weight’ in any proceedings. A somewhat out of character move for an English court, who traditionally see pre-nuptial agreements as one of many deciding factors in divorce cases.
The Scottish perspective
North of the border in Scotland, pre-nuptial agreements are well established and accepted. Generations of Scottish families have used such agreements to ensure that uncertainty is avoided should the parties decide to separate. Family Law practitioners recommend that written agreements are entered into by all couples who are considering cohabiting for the protection of pre-relationship, gifted or inherited assets. By considering how such matters will be dealt with at the outset considerable cost and heartache can be avoided if the parties decide in the future to end their relationship. The cost of preparing such an agreement is almost always a fraction of the cost of a contested divorce.
The parties must agree that the terms of any agreement are fair and reasonable at the time the agreement is drawn up to ensure the agreement will not be subject to legal challenge in court. For this reason, it is essential that both parties instruct their own solicitor to protect their respective positions. Once the agreement is signed, it can be registered at the Books of Council and Session, so that aspects of it can become enforceable later on. If the parties wish in future, the agreement can be reviewed, modified or even cancelled altogether should the parties agree that it is no longer necessary or relevant. This flexibility is a really attractive aspect of pre-nuptial agreements.
What to do now
So if you’re considering drawing up a pre-nuptial agreement in Scotland, our advice is to take every step to ensure everything is done above board, above suspicion, and absolutely fairly to your partner and yourself. It means you can rest easy knowing you’ve made your own arrangements with finances and property, rather than risking leaving it up to a court if you should divorce.
If you’d like to get some more information or talk to trained practitioner in pre-nuptial agreements and Scottish divorce law, get in touch with us here.