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The future is uncertain for all of us.  We all seek whatever reassurance we can regarding what might happen in the future.  More and more couples are choosing to enter into Pre-nuptial Agreements to regulate financial matters should they separate in future.  Whilst it may appear unromantic, many people feel that an honest discussion regarding their finances enables them to have a more trusting relationship with their partner during the course of the marriage.  A Pre-nuptial Agreement can provide both parties with clarity as to how any assets might be divided should they separate in future.  It can reduce the risk of protracted and expensive litigation in the event of your separation.  It allows both parties some measure of certainty as to their separate futures going forward. 

It is often the case that we represent clients entering into their second or subsequent marriage.  There may be children of a previous marriage to be considered or they may have accumulated substantial assets which they wish to protect.  A Pre-Nuptial Agreement can “ring-fence” certain property you bring to a relationship in which you might wish to ensure is excluded from any future financial settlement in the event of a relationship breakdown.  It may also be possible in a Pre-Nuptial Agreement to make provision for how assets that are acquired during the course of your marriage to be dealt with.

Family Lawyers Glasgow City Centre, Scotland

Many clients query the legality of such agreements. It was previously the case that their legality was uncertain However, it is now the case that a properly drafted pre-nuptial agreement is fully binding on the parties entering into it. It is crucial that the terms of a prenuptial agreement are fair and reasonable on both parties and proceed on a full understanding of each parties respective financial position. Any agreement that does not fulfil those criteria is open to challenge by an aggrieved party in future. We advise our clients fully regarding their rights and obligations before entering into negotiations on their behalf. We recognise that any negotiations require to be dealt with sensitively, given that our client intends to marry the person with whom they are negotiating. Our aim is always to ensure that our client’s financial interests are protected and promoted whilst respecting their wider interests.     

Of course, many people decide not to marry and simply to live together. Until recently, co-habitants had virtually no rights to make financial claims on each other, sometimes causing great hardship. There was a recognition of the inequities this could cause  In Scotland therefore legislation was passed giving co-habitants certain limited rights to make claims for financial provision when their co-habitation ends.  However, those claims are different and more limited than those available to married couples and must be pursued through the court within very strict time limits.

In the event of one co-habitant dying, the surviving partner can find themselves with no automatic rights to any part of their partner’s estate if there is no will.  A claim against the deceased partner’s estate might be pursued through the Court, but this requires to be raised within 6 months of the partner’s death.  Pursuing such a claim can cause a great deal of upset and distress at an already difficult time. There is no set amount or percentage of the estate which can be claimed but a surviving co-habitant cannot be placed in any better a position than if the parties had been married. The only claim which can be made is for a cash payment from the estate. It is not possible for example to ask the court to transfer title to the deceased’s house to the surviving partner if it was in the deceased’s sole name, even if that had been used as a family home. This might result in a surviving partner requiring to vacate their home.   

If the co-habitation ends other than by one party’s death, both parties have the right to make claims on each other. Any claim requires to be pursued through the courts within one year of the co-habitation ending. There is no presumption that both parties are entitled to a half share of any property acquired during the course of their co-habitation. If a party wishes to make a claim, they have to show that the other party has enjoyed an economic advantage whilst they have sustained an economic disadvantage. The amount of any claim they may have is limited to this. Only a cash sum can be claimed and there is no provision for the court to make any other type of award, such as a property transfer order.     

Entering into a Co-Habitation Agreement can regulate how financial matters should be resolved in the event of your relationship ending either through separation or death. Such an agreement can, for example, make provision for assets to be ring-fenced or for a surviving co-habitant to have the right to remain in a house in the event of the other party’s death.

It is also sometimes the case that a married couple may decide after their marriage that they should have entered into a Pre-Nuptial Agreement prior to tying the knot.  It is not too late for them to enter into an Agreement.  Such an Agreement is called a Post-Nuptial Agreement and can regulate financial matters should they separate in future. 

We are happy to assist our clients in entering into such Agreements.  We fully understand that our clients remain in a relationship with their partner.  Our aim is to provide clear headed and dispassionate advice regarding your rights and responsibilities whilst at the same time recognising the sensitivity of the situation.  Our aim always is to provide our clients with the best advice with a view to protecting their position going forward whilst recognising that they are not in an adversarial situation with their partner.  Our aim always is simply to ensure that our clients achieve a fair and reasonable settlement should the relationship break down or end. 

Contact our Pre-nuptial, Post-nuptial & Co-habitation Agreements Solicitor in Glasgow, David Doig

If you are contemplating marriage or moving in with someone and require sensitive advice, we are happy to assist. To speak to one of the top family lawyers in Glasgow, contact us on 0141 530 1360.

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