Comments on: Prenuptial and postnuptial agreements: are they any good? – by guest blogger Robin Charrot http://www.marilynstowe.co.uk/2010/01/23/prenuptial-and-postnuptial-agreements-are-they-any-good-%e2%80%93-by-guest-blogger-robin-charrot/ Where Family Law Meets Family Life Sun, 20 May 2012 21:43:02 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: John Macfie http://www.marilynstowe.co.uk/2010/01/23/prenuptial-and-postnuptial-agreements-are-they-any-good-%e2%80%93-by-guest-blogger-robin-charrot/#comment-480 John Macfie Tue, 26 Jan 2010 18:47:46 +0000 http://www.marilynstowe.co.uk/?p=1600#comment-480 We in Scotland are a little less at sea than practitioners are for the moment in England - pending statutory reforrm or further judicial guidance - when it comes to the enforceability of both pre- and post-nuptial agreements. Where parties reach agreement as to what financial provision is to be made on divorce under Scots law, the agreement will be enforced unless it is not fair and reasonable at the time it was entered into (Family Law (Scotland) Act 1985, s. 16). Fairness and reasonableness should, the courts tell us, be seen in the light of amongst others the following: 1. The agreement should be objectively fair and reasonable, which means amongst other things, full disclosure; 2. All relevant circumstances must be looked at, including the quality of the legal advice secured by both parties; 3. There should be equality of arms, that is no unfair advantage taken of one by the other, no gun at the head; 4. The courts do not readily seek to overturn contracts validly entered into; 5. That an agreement may turn out better for one party than another at the end of the day does not of itself make the agreement fair and reasonable. Each matter turns on its own facts. Having spent many years as the preserve of the substantially wealthy, we are seeing a trickle of more recent decisions from the courts beginning to bulk out the bare bones of principle. It is pleasing to see England and Wales moving in the same direction, however painfully. We in Scotland are a little less at sea than practitioners are for the moment in England – pending statutory reforrm or further judicial guidance – when it comes to the enforceability of both pre- and post-nuptial agreements. Where parties reach agreement as to what financial provision is to be made on divorce under Scots law, the agreement will be enforced unless it is not fair and reasonable at the time it was entered into (Family Law (Scotland) Act 1985, s. 16). Fairness and reasonableness should, the courts tell us, be seen in the light of amongst others the following:

1. The agreement should be objectively fair and reasonable, which means amongst other things, full disclosure;
2. All relevant circumstances must be looked at, including the quality of the legal advice secured by both parties;
3. There should be equality of arms, that is no unfair advantage taken of one by the other, no gun at the head;
4. The courts do not readily seek to overturn contracts validly entered into;
5. That an agreement may turn out better for one party than another at the end of the day does not of itself make the agreement fair and reasonable.

Each matter turns on its own facts. Having spent many years as the preserve of the substantially wealthy, we are seeing a trickle of more recent decisions from the courts beginning to bulk out the bare bones of principle. It is pleasing to see England and Wales moving in the same direction, however painfully.

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