Yes, usually, if they are made properly. Here is how Scots law treats a prenup, who should consider one, and how to make one that stands up if it is ever tested.
Nobody plans a wedding hoping to need a prenuptial agreement. That is rather the point of having one.
Sky's new drama War, follows two rival London law firms fighting over a tech entrepreneur's divorce from a film star. It is set in London, under English law, and is about as far from a typical separation as you can get. But it captures something real: when a marriage ends badly, the finances are settled by people who are stressed, in a hurry and have every reason to disagree.
A prenup does the opposite. It settles those questions calmly, years earlier, between two people who still like each other. And in Scotland, where the law differs from the one in War, it works rather differently from what most people assume.
What is a prenuptial agreement?
A prenup is a written agreement, signed before the wedding, setting out what each of you will keep and how money and property will be dealt with if the marriage ends. It is often called unromantic, and it can be. But it is also one of the few conversations about money that is far easier to have while you are both happy than at any time afterwards.
Are prenups legally binding in Scotland?
Largely, yes, and more reliably than many people assume.
Scots law treats a prenup as a contract between two adults, and the courts are generally reluctant to interfere with what people have freely agreed. But there is a safety net. Under section 16 of the Family Law (Scotland) Act 1985, a court can set aside or vary an agreement, or a term of it, if it was not fair and reasonable at the time it was entered into.
Two things about that test are worth understanding.
It looks at the day you signed, not the day you divorced. If the agreement was fair and reasonable when it was made, the fact that it works out harshly twenty years later is not normally a reason to overturn it. Section 16 is not a second chance for someone who simply has regrets.
It looks at how the agreement came about. The court will consider the circumstances leading up to signing, including the nature and quality of any legal advice each person received. An agreement signed the day before the wedding, without advice, by someone under pressure, is exactly the sort that has been set aside.
Do I need a prenup in Scotland?
Before deciding, it helps to know how much protection the law already gives you.
On divorce, Scots law divides matrimonial property: broadly, what either of you acquired during the marriage, up to the date you separated. The starting point is fair sharing, which usually means equal.
Several things are generally left out: property you owned before the marriage, gifts and inheritances. That ring-fencing is more generous than many couples expect, and it is a big part of why prenups are used less in Scotland than elsewhere.
There are important exceptions, and they are where a prenup earns its place.
The family home. A house bought before the marriage and used as the family home is treated as matrimonial property, to the extent of its value when you married, even if it was entirely yours beforehand.
Growth in value. An asset that was yours before the wedding can still produce matrimonial property if it grows during the marriage, particularly a business or an investment portfolio.
Mixed funds. Inherited or gifted money paid into a joint account or spent on a shared project can lose its protected status very easily.
Pensions. Often the largest asset after the home, and rarely well understood.
Who should consider a prenuptial agreement?
There is no typical couple, but the same situations come up again and again.
Someone owns a business, or a share in a family business, that they want to keep intact.
Someone owns a house or other substantial property before the wedding.
Either of you expects to inherit significantly, or has already received family money.
Either of you has children from an earlier relationship and wants to protect what is intended for them.
It is a second marriage, and both of you already have established assets.
What these have in common is that a prenup lets you decide in advance what would otherwise be left to a court's view of fairness, at a time when neither of you has any reason to distrust the other.
What can't a prenup do?
Being realistic about the limits is part of making a good one.
It cannot bind the court on children. Arrangements for children, including where they live and how they are supported, are decided by reference to their welfare at the time, not by anything you agreed beforehand.
It cannot guarantee an outcome. Because the court keeps the power to set aside an agreement that was not fair and reasonable when made, no prenup comes with an absolute guarantee. A well-prepared one is very likely to be upheld. That is not the same as certain.
How do you make a prenup that will stand up?
Almost everything that goes wrong with prenups comes down to how they were made, not what they say.
Start early. Not weeks before the wedding. The closer to the day, the harder it is to argue that nobody was under pressure.
Full and honest disclosure, both sides. Assets, income and debts. If one person hides or understates something, that alone can undermine the agreement.
Separate legal advice for each of you. Not one solicitor acting for both. This is the single most important protection against a later challenge, because it goes directly to how the agreement came about.
Terms that are fair. An agreement that leaves one person with almost nothing is far more likely to be set aside than one that sensibly protects what each brought in.
A review clause. Circumstances change, particularly when children arrive. Agreeing to revisit the terms after a major event keeps the agreement fair as life moves on.
Properly signed. Formalities matter in Scots law, and a defective document can undo months of careful work.
What about postnuptial and cohabitation agreements?
If you are already married, many of the same principles apply to a postnuptial agreement. It is sometimes useful where circumstances have changed, for example after an inheritance or the sale of a business.
Couples who live together without marrying are in a different position. Cohabitants have much more limited rights under Scots law, section 16 does not apply to them, and the time limit for making a claim is short (one year from the date you separate). A cohabitation agreement serves the same purpose as a prenup and is worth considering for the same reasons.
How much does a prenuptial agreement cost in Scotland?
Every agreement is different, depending on what each of you owns and how complicated it is. We agree our fee in writing before we start, so you know the cost from the outset. Your partner will need their own solicitor, who will charge separately, because we can act for only one of you. You can see our other prices on our Fees page.
Prenuptial agreement solicitor in Alexandria, West Dunbartonshire and West Stirlingshire
We advise on prenuptial, postnuptial and cohabitation agreements for individuals and couples across Alexandria, Balloch, Dumbarton, Helensburgh, Loch Lomondside and the villages of West Stirlingshire, including Killearn, Drymen, Strathblane and Balfron.
The first step is a conversation about what you each want to protect and whether an agreement is the right tool at all. Sometimes it is not, and we will tell you so.
You can see us at our office at 102 Main Street, Alexandria, by video call, or at your home. If you are planning a wedding, the best time to call is as soon as you are engaged!
Call 01389 756785 or contact us online to arrange a time.
Frequently asked questions
Are prenuptial agreements legally binding in Scotland?
They are treated as contracts and generally upheld, but a court can set one aside or vary it under section 16 of the Family Law (Scotland) Act 1985 if it was not fair and reasonable when it was signed.
Do both of us need our own solicitor?
Yes. Separate legal advice for each person is the strongest protection against a later challenge. One solicitor cannot act for both of you.
How long before the wedding should we sort out a prenup?
As early as you can. Starting weeks before the wedding invites the argument that someone was under pressure, which is one of the main reasons agreements are challenged.
Can a prenup decide arrangements for our children?
No. The court decides those by reference to the child's welfare at the time, whatever you agreed beforehand.
We are already married. Is it too late?
No. A postnuptial agreement works on much the same principles and is often used after a change in circumstances.
Can unmarried couples have an agreement?
Yes. A cohabitation agreement can set out what happens to property and money if you separate, and it is worth considering because cohabitants' legal rights are limited.
This article is general information about the law in Scotland and is not legal advice on any individual case. The law described is correct as at the date of publication.