3 How can the spouses arrange their property regime?

3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?

England/Wales

The spouses can always apply for ancillary relief, even when a marital agreement is in place.

That said, a fair agreement between the spouses regarding the distribution of their property in case of divorce can nevertheless be of significant importance and certainly is an important factor to be taken into account by the court when exercising its discretion. The Supreme Court has indicated that an agreement is not fair if it prejudices the welfare of any of the children involved and that contracting out of the 'sharing strand' of fairness is more likely to be fair than contracting out of the 'strands' of needs and compensation (see under 5.1.).

Scotland

The spouses have freedom to arrange their property as they wish. There are no ready-made legal matrimonial property regimes into which the spouses can opt.

3.2. What are the formal requirements and who should I contact?

England/Wales

While there are no formal requirements as such, it is nevertheless recommended most strongly that the spouses receive independent legal advice and that the assets are disclosed in full, and that this is recorded in the agreement; where that is not the case (or not possible), a waiver should be recorded accordingly.

Scotland

There are no formal requirements other than the normal formal requirements for the type of transaction in question.

3.3. When may the contract be concluded and when does it come into effect?

England/Wales

A marital agreement can be concluded and modified before and during the marriage (and even after the marriage). Its effect of course depends on the circumstances, but very often the terms agreed will only be effective in case of divorce (as England and Wales do not have a matrimonial property regime, see 2.1. and 2.2. above).

It is quite common for spouses to conclude agreements regarding their property etc. at the point in time when they have decided to divorce (so-called separation agreements); these can then be embodied in court orders (so-called consent orders).

Scotland

The couple can arrange their assets as between themselves at any time. They can choose when the arrangement comes into effect.

3.4. May an existing contract be modified by the spouses? If so, under what conditions?

England/Wales

Yes. See answer to 3.3.

Scotland

The spouses can re-arrange their assets as they wish at any time. However, if the spouses have given away assets and placed them beyond their control (e.g. by putting them in a marriage contract trust or family trust) then, of course, they cannot then re-arrange them.