In Scotland, the laws defining matrimonial property mean that a large number of marital assets are naturally protected by law and will not be available for division in the event of divorce. Prenups are put in place to protect any excluded assets that could be reinvested or changed in a way that would convert them into matrimonial assets. Commonly, the agreement will be led by the partner who has more assets they wish to protect, but the results of a prenup should protect both parties so that neither would be left financially vulnerable after a divorce.

Although traditionally an Americanism, prenups are gaining momentum across Scotland, likely due to the number of high-profile celebrity divorce cases that find themselves plastered across news outlets and talk shows for the whole world to observe.

In Steven Spielberg’s latest award-winning film, The Fabelmans, he addresses divorce and how it can affect the lives of those around the couple. The plot is loosely based on Spielberg’s childhood, where he watched his parents divorce and then dealt with the repercussions from there on, but he’s no stranger to divorce himself, having split from his first wife, Amy Irving, in 1989.

Spielberg and Irving reportedly drew up a prenup that outlined their income and property, as well as how much Irving would walk away with in the event of the divorce. In theory, this should have resulted in cut-and-dry divorce proceedings, however, this prenup was supposedly written on the back of a napkin without a lawyer present. Irving claimed in court that this ad-hoc prenup was invalid, and the court ruled in her favour, and she was entitled to half of Spielberg’s earnings from the four years of their marriage, which totalled $100 million. This was the most expensive Hollywood divorce of its time, although more recent celebrity cases have since trumped this total.

Of course, most couples going through divorce proceedings will have a considerably lower net worth than the rich and famous, so is a prenup as vital of a decision for the everyday marriage? If a couple has little to no assets then a prenup may not be necessary, however, with an ageing population and an increasing divorce rate, the number of couples in their second or third marriage presents prime candidates for a prenup. It doesn’t matter what the value of the assets is, it's about splitting up whatever assets are shared in a pre-agreed manner to ensure both parties are financially secure after divorce.

The discussion of the financial division of assets with couples who are yet to tie the knot isn’t always received positively, as happy couples are reluctant to consider the worst when their relationship currently shows no signs of divorce. Unfortunately, a large percentage of marriages end in divorce, and being prepared for the possibility can save time, money, and stress if the situation does arise.

So, how can you approach the subject of a prenup with a happy couple?

1. Advise them of the likely division of assets on divorce. Even if the couple doesn’t believe that they have many assets that would be divided, learning how each asset would be split could open their eyes to the possibilities, and even if they still decide against a prenup, at least they are suitably informed of the potential outcome.
2. Keep emotion out of the equation. At the end of the day, assets are purely currency, and will likely be hard-earned by one or both of the parties. Couples need to consider whether they want to risk losing their assets should they, statistically speaking, follow the norm and separate.
3. Advise the couple on the prospective costs of negotiating a contested divorce. Having a prenup in place can considerably reduce the time and money required to mediate a divorce, and although a prenup has its own costs involved, it will be significantly less than the alternative.

If you remain unsure whether a prenup will be right for your relationship either pre or during a marriage, consult an experienced solicitor who can provide you with relevant information and advice suited to your personal situation. Agreeing to a prenup is not signing your marriage up for failure, instead, it could be the saving grace that protects both you and your partner if your relationship does ever hit the rocks.