Karen Wylie: Social media clauses in Pre-nup

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As George Clooney, below, begins married life, reportedly with an “ironclad” pre-nuptial agreement in place, it is interesting that the latest trend coming out of America is for the inclusion of social media clauses.

These set out what can and cannot be posted on social media sites in the event of wedded bliss not quite going to plan. They can cover such detail as sharing personal information about the relationship, or any conscious uncoupling across the internet. If the agreement is breached, the guilty spouse can end up paying a significant sum of money to the other.

In Scotland, where some people are still surprised to learn that pre-nups as well as cohabitation agreements are enforceable, the “Ts and Cs” are a little more traditional and used to provide protection to an individual with significant assets accrued pre-marriage in the event of the marriage breaking down. This makes them popular with people who have been married before and perhaps had a difficult separation and divorce.

That said, the idea of having clauses dealing with unacceptable social media use in a pre-nup or cohabitation agreement is an interesting one – and increasingly raised in consultations. Anecdotal evidence suggests that more clients complain about the conduct of their estranged partner online following separation, perhaps posting embarrassing photographs or sharing the gory details of arguments and the ultimate break up with all their friends, neighbours and even work colleagues on Facebook.

A social media pre-nup may not totally remedy the problem, although they are likely to encourage couples to modify their behaviour in the event of a separation.

Are they enforceable? Such clauses are 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 enforced.

So why not? It’s simply part and parcel of the wedding planning. Ask Mr Clooney.

Karen Wylie is associate with the family law team at Morton Fraser