There’s no getting around it, talking about a written agreement as part of a romantic relationship is definitely awkward. Whether pre-nuptial (before a marriage or civil partnership has taken place) or post-nuptial (after a marriage or civil partnership has taken place) a couple may wish to enter into an agreement in relation to some or all of their financial, living or childcare arrangements to inform what is to happen should the relationship end.

Cohabitation agreements

When a couple are residing together but have not married or entered into a civil partnership, it is still possible to enter into an agreement to prescribe the arrangements if the relationship were to end.

The general legal principles which apply to all written agreements also apply in relation to cohabitation agreements. The parties must be free of undue influence, which means the agreement must be entered into freely by people who have the capacity to understand what has been agreed and who have not been taken advantage of.

Pre and Post Nuptial Agreements

When parties enter into an agreement before they get married or enter into a civil partnership (pre nuptial), or are already married or in a civil partnership (post nuptial), any agreement in relation to financial provision must be fair and reasonable at the time it is entered into. This is prescribed by law in terms of s16 of the Family Law (Scotland) Act 1985. It is important to understand that, by entering into their own pre or post nuptial agreement, the parties are contracting out of the principles of “fair-sharing” upon divorce or dissolution which are narrated under the 1985 Act.

The agreement can relate to the whole of the matrimonial estate or only part of it. If the agreement only applies to specific assets or income, the agreement must clearly identify what is being “ring-fenced” and be clear as to what is to happen to the identified assets upon separation.

Who needs an agreement?

There is no “one size fits all” formula to written agreements – the terms of any agreement are individual to each couple and to their personal and professional circumstances. Common circumstances whereby it may be prudent to consider a written agreement include:

  • Individuals with significant inheritance prospects
  • Individuals with children from prior relationships
  • Individuals with pre-existing assets (for example properties, shares, business interests, cash)
  • Individuals concerned about the longevity of the relationship
  • Individuals seeking certainty
  • Individuals changing the form of an asset (for example putting money into a shared home)

Seeking advice

While it is not a requirement in Scotland for both parties to have independent legal advice, the most sensible approach would be for both to receive at least some basic advice as to the implications of any agreement before it is signed. For obvious reasons one solicitor cannot act for both of the parties.

Similarly, in Scotland it is not a requirement to fully disclose all financial assets before you enter into an agreement. However, any absence  of “full disclosure” should be declared in the agreement and understood by both parties to avoid any enforcement issues later on.

  • Johnson Legal are specialists in family law and have experience in drafting and advising on all types of written agreements. If you are considering whether you need an agreement, or wish for independent advice on one which has been proposed to you, contact us on 0131 622 8477 for a free initial consultation with one of our solicitors.