Prenups are pragmatic, not a matter of distrust

In recent years, the use of prenuptial agreements in Scotland has been on the rise. More couples are recognising that marriage isn’t just about romance - it can also involve significant financial stakes. Several key social and economic trends help to explain why prenuptial agreements are becoming more mainstream across the developed world, including in Scotland.

One major factor is the shift in timing and life-stage for many couples. People are marrying later than previous generations, often after years of establishing careers, building savings, purchasing property, setting up businesses or receiving inheritances or gifts. As a result, they are more likely to enter marriage with premarital assets they wish to protect. A prenup becomes a practical tool to “ring-fence” assets rather than leave them exposed to the standard rules for division on divorce.

Another driver is the move towards dual-career households. When both partners are established professionals, the financial landscape of a marriage becomes more complex: each may have separate savings, pensions, or business interests. The notion of “two careers, two sets of assets” prompts couples to consider how they want things to be handled if the marriage ends, and a prenup is increasingly viewed as a pragmatic part of that conversation.

Gillian Crandles is an expert on family law

Parents, trustees, wealth advisors and legal professionals are also playing their part. In families where there is significant wealth one partner may be encouraged, subtly or overtly, often by more than one person, to put an agreement in place. This is normalising prenups and they are often now seen as a tool in the broader financial planning landscape rather than a sign of distrust.

Finally, younger couples are often pragmatic and may see a prenup as a way to clarify financial expectations, ensure fairness, and minimise conflict should things go wrong - not as a gloomy forecast of failure.

In Scotland, prenuptial agreements are recognised and generally enforceable if there has been full financial disclosure and separate, independent legal advice. The agreement should also be entered into without undue pressure, and not too close to the wedding. The terms themselves must also be fair and reasonable at the time of signing. If those conditions are met, although there has never been a full test case, the prevailing view is that a properly drafted prenup will be upheld by Scottish courts.

In England and Wales, the position is more cautious. Until 2010, prenups were generally regarded as non-binding. Landmark case Radmacher v Granatino changed the landscape and said a prenup should be given “decisive weight” provided it was freely entered into and the parties fully understood its implications. However, there remains no guarantee of enforcement, and English courts retain wide discretion to depart from the terms of a prenup if it feels it doesn’t meet the parties’ needs at the point of any divorce. “Needs” are interpreted generously in England, which has a reputation for making large awards. As a result, the Scottish regime is seen as offering a more predictable path and increased prospects of enforceability.

Within the Scots legal system, these agreements are generally accepted and can provide meaningful protection. Although no-one enters marriage expecting it to fail, a prenuptial agreement can act as a form of financial planning: protecting both parties, clarifying expectations and avoiding a stressful and expensive divorce. For cross-border couples, understanding the differences between Scottish law and the English model is vital.

Gillian Crandles is Managing Partner and Head of Family Law, Turcan Connell. This article was co-written by Jenny Jarman-Williams, Family Law Consultant, Turcan Connell​