Most divorces where parties have accumulated assets will conclude with an agreement detailing the division of property.
Agreements can be contracts made between people to agree how to divide and/or transfer property, or to “ringfence” assets. Sometimes they can provide for future changes – typically including the breakdown of a relationship.
Not all agreements will last forever. It depends how they are drawn up, and what for. If there are provisions in an agreement to do with children, particularly to do with the children’s living and contact arrangements or money for their maintenance, they may later be varied, whether voluntarily by agreement, or by orders made by a court, or cease to have effect on the children reaching a certain age.
Your solicitor might refer to this as a minute of agreement. It is a contract that separating people enter into and sign to say what will happen with their money or assets (or debts). It may be entered into before or after proceedings for divorce or for dissolution of a civil partnership are raised.
Ante-nuptial or pre-nuptial agreement
Both names mean the same thing. It is an agreement that is entered into usually to ringfence certain assets, to exclude them from “matrimonial property” on separation or divorce, or to make specific provision for what each contracting party shall receive on any separation or divorce.
The general rule in Scotland is that adults of sound mind can agree, prior to marriage, to make their own contract which cannot be interfered with by the court in relation to their future financial provision on a divorce.
This is a contract between unmarried people, most commonly to stipulate how a commonly owned property, such as a house, is to be dealt with if the couple separate.
Some agreements may be drawn up to deal exclusively with children of relationships. The sorts of things involved may include:
- who the children live with (residence – in the past called custody);
- when child contact takes place (formerly referred to as access);
- money for the children’s needs, whether from day to day (aliment or child maintenance), or for specific things such as clothes, schooling and recreation costs, or things like travel and holidays.
Any contract dealing with residence and contact arrangements for children may be varied up until the children reach the age of 16.
Money provisions for children can be interrupted or varied in certain cases (depending on how an agreement has been drawn up), on what is called a “material change of circumstances”, or by the intervention of the Child Maintenance Service (formerly CSA), whether or not a written agreement has been entered into.
Parents who do not otherwise have parental rights and responsibilities (typically unmarried biological fathers not named on a child’s birth certificate, where the birth is registered before 4 May 2006) can obtain these rights by entering with the child’s mother into a “section 4 agreement”. There is a prescribed form for these agreements.
Considerations for an agreement being enforceable
- Take quality independent legal advice from a qualified family lawyer.
- Get the timing right – for example, an agreement entered into and signed the night before the wedding or just immediately before the purchase of a specific asset will more likely be open to challenge.
- Ensure, and declare, a full disclosure of finances/valuations.
- Think to the future, for example foreseeable changes of circumstances, and provisions for review and/or variations.
- Jurisdictional matters, particularly for foreign nationals, and for persons in a couple either or both of whom are likely to, or who may, move abroad.
- Fairness and reasonableness – at the time the agreement is entered into.
- Any “unfair advantage” taken by one side in the agreement may imperil the enforceability of the agreement on any subsequent challenge.
Finally, be wary of websites offering bespoke “pre-nuptial agreements for sale”. Always take quality advice from a qualified family lawyer.