According to a number of recent reports, social media pre-nuptial agreements (pre-nups) are on the increase. In other words, more and more couples, particularly in the US, are entering into contracts about what they can and cannot post on websites such as Facebook and Instagram. A number of these pre-nups have penalties, usually a monetary penalty resulting in a spouse paying a significant sum of money to the other if they breach the agreement for example by sharing personal information about the relationship or the break up of the relationship on social media.
The US does have a reputation for more unusual types of clauses in their pre-nups. For example it was widely reported that Kanye West and Kim Kardashian's pre-nup had clauses stipulating maximum weights for each other and a clause preventing Kim from having plastic surgery!
Some people are surprised to learn that pre-nups (and post-nuptial agreements), as well as cohabitation agreements, are regarded as being enforceable in Scotland. An increasing number of couples are entering into these agreements before moving in together, entering to a civil partnership or getting married.
In Scotland pre-nups tend to be used for more traditional reasons. There is often a more conservative approach to the drafting of the agreement; as such agreements must be fair and reasonable at the time that it is entered into or there is the risk that they could be set aside by a court at a later stage.In our experience, pre-nups are normally used to provide protection to an individual with significant assets accrued pre-marriage in the event of the marriage breaking down. The pre-nup, where carefully drafted, is a useful tool to protect non matrimonial assets and to avoid potential future dispute. Pre-nups are often popular with individuals who have been married before and perhaps had a difficult separation and divorce.
The idea of having clauses dealing with unacceptable social media use in a pre-nup or cohabitation agreement is an interesting one. Anecdotal evidence suggests that an increasing number of clients complain about the conduct of their estranged partner online following separation perhaps sharing difficulties with contact, posting embarrassing photographs or sharing the gory details of the break up with all their friends, neighbours and old school friends on Facebook. A social media pre-nup may not totally remedy the problem, however they are likely to encourage couples to modify their behaviour in the event of a separation. The question is - would such a clause be enforceable? Such clauses are, to date, untested in Scotland; however assuming both parties have taken legal advice, the agreement is entered into freely and the agreement is properly drafted there seems no reason why a clause of this kind would not be enforceable. Moreover, while untested, just having the clause in the pre-nup may make an individual reluctant to take the risk of breaching the agreement.
We understand that pre-nups, whether they deal with social media use or not, is a subject that many couples are reluctant to discuss, perhaps feeling that to raise the issue is to suggest that they are concerned the relationship will fail. However, if it is dealt with sensitively there is no reason for the subject to cause difficulties and it can be considered to be simply part and parcel of the wedding planning.