Non-Contentious Family Law

Pre-nuptial and Post-nuptial Agreements

Pre-nuptial and Post-nuptial Agreements setting out how a couples finances will be divided if their marriage fails are becoming increasingly popular in Scotland, particularly for those with wealth established prior to the marriage and those entering into second or third marriages where they wish to protect their wealth in full or in part for their children of a previous marriage. In Scotland Pre-nuptial Agreements are generally thought to be enforceable and binding although that can depend not only upon where it is drafted and signed but also where any divorce proceeds. We have the expertise to fully advise you on the appropriate terms of such agreements and to prepare them on your behalf so as to protect your interests in the best possible way.

Wealth Preservation Advice

Advice given to individuals, as part of a wealth preservation exercise, can on occasion result in various assets, which would otherwise be excluded from the matrimonial pot, being susceptible in the event of a divorce. We will work with our Private Client and Corporate Department to advise on the risk inherent in such an exercise, together with what steps can be taken to minimise, or even limit that risk.

Co-habitation Agreements

The importance of Co-habitation Agreements is set to rise following the Family Law (Scotland) Act 2006, which came into force in May 2006. Co-habitation Agreements have always been advisable where two parties buy a house together in joint names. In the majority of cases most parties will not be making an equal contribution to their purchase price and the running costs of the house. If parties fall out and the house is held in joint names, in the absence of a Co-habitation Agreement the other party can require that the house is sold and the net free proceeds of sale would automatically fall to be divided equally between them except in exceptional circumstances. Even in exceptional circumstances, the party who contributed more towards the purchase, running or improvement costs is more than likely to face a difficult and costly Court battle, with no guarantee of success, in order to redress the differing balance of contributions made.

A Co-habitation Agreement can ensure that in the event of the breakdown of a relationship, not only are the day to day living costs regulated, but the ultimate fate of the house and the division of the proceeds of sale (and any other joint assets) is agreed in advance.

The 2006 Act for the first time in the UK brings in limited rights for unmarried co-habitants, even where there is no joint ownership of property. These rights will be open to both heterosexual and homosexual couples. In certain circumstances, a co-habitant can make a financial claim against their former partner in respect of their relationship in a way that is almost akin to seeking financial provision on divorce. The 2006 Act also introduces for co-habitants limited rights to each others estate upon death, although only upon the other co-habitant dying without leaving a will. Such a claim could of course potentially prejudice any claim by the children of the deceased.

To ensure that your assets are protected against any claim made by someone who becomes a former co-habitant a Co-habitation Agreement will prove invaluable. Making a will or having a clause within your Co-habitation Agreement can also protect against claims made following death of one party.