A pre-nuptial/pre-civil partnership agreement is an agreement made between two people before they get married or enter into a civil partnership. It sets out the property and money that belong to each person before the marriage or civil partnership and which is intended to remain the property of that person after the ceremony and even after the marriage/civil partnership itself.
England and Wales
Lots of people think these agreements aren’t valid in England and Wales but, as long as the guidelines set out below are followed carefully, there is no reason why your pre-nuptial agreement can’t be legally valid.
Follow these simple rules when entering a pre-nuptial agreement.
1. Be frank and honest with each other, don't hide or fail to mention property or money that you own or might own in the future.
2. Give yourselves plenty of time to agree the terms, don't rush them or leave it to the last minute - it should be completed and signed at least three weeks before the ceremony.
3. You should both want to have a pre-nuptial agreement and neither of you should feel "forced" into making the agreement by the other or by family.
4. The agreement should be fair to both of you. You are trying to save the unpleasantness of a messy divorce or dissolution, so you are looking for an agreement that would probably be acceptable to a divorce or dissolution judge.
5. You must both take legal advice before making this agreement. You must believe that the agreement treats you both fairly.
6. Your pre-nuptial agreement should deal with finances and property only. This is not the document in which you record your housekeeping rota; if you do, you risk the agreement being thrown out by the court.
7. Make sure that you check over your agreement regularly to make sure it is still right for you both.
8. And finally, remember, your pre-nuptial agreement is confidential.
If there are any major changes in your circumstances this can affect the agreement.
A major change could be losing your job or long-term illness, or having children. Major changes like these will probably mean that you have to make a fresh agreement.
In Scotland, pre-nuptial /pre-civil partnership agreements (also known as a ‘minute of agreement’) are legally binding provided that they are fair and reasonable at the time they are entered into.
The following safeguards need to be met to show that the pre-nuptial/pre-civil partnership agreement is fair and reasonable:
Each party must have had sufficient time to fully consider and understand the terms of the agreement before entering into it.
Each party have been aware of all information necessary to allow them to fully consider and understand the terms of the agreement.
Each party must have received separate and independent legal advice.
Neither party was under pressure or duress to sign the agreement against their will.
The agreement must either be made well in advance of the wedding or, where the agreement was entered into shortly before the wedding/civil partnership is entered into, discussions regarding the agreement must have been ongoing for a reasonable period prior to the wedding/civil partnership being entered into.
Such an agreement will be upheld in Scotland, save in the most extreme circumstances.