Jeremy D. Morley
Prenuptial agreements are authorized by Scottish law.
Section 9 (1) of the Family Law (Scotland) Act 1985 provides the principles that a court in Scotland must apply when deciding what order for financial provision, if any, to make upon a divorce. Such principles include the principle that "(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage."
Section 10 (1) provides that, " In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances."
Section 10 (6) provides that, "In subsection (1) above "special circumstances", without prejudice to the generality of the words, may include-
(a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property."
And Section 16 (1), entitled "Agreements on financial provision" provides that, "Where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce, the court may make an order setting aside or varying.... (b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into."
In practice, pre-nuptial agreements in Scotland are typically used to "ring fence" certain assets, in order to exclude them from the statutory definition of "matrimonial property." Comprehensive prenuptial agreements that are designed to override the principles otherwise governing the division of matrimonial property on divorce are relatively unusual. Nonetheless prenuptial agreements are sometimes used in Scotland not merely to make provision for the division of property upon divorce but also to deal with rights to aliment (spousal support) after the breakdown of marriage and rights of succession in the event of death.
Prenuptial agreements in Scotland are sometimes said to be considered to be contracts, just like any other contracts, which are enforceable subject to the same kind of defenses that might apply to conventional contracts.
However, Section 16 of the Act creates a special exception for prenuptial agreements that were "not fair and reasonable at the time ... entered into." They must be entered into with care.