Nuptial agreements are becoming increasingly popular, with more couples now treating a...
Nuptial agreements are becoming increasingly popular, with more couples now treating a "prenup" as a sensible piece of financial planning, similar to making a will or taking out life insurance. If you are thinking about one, it helps to understand what these agreements can do, what they cannot do, and how the courts in England and Wales treat them.
What is a prenuptial agreement?
A prenuptial agreement is a written agreement entered into by a couple before they marry which specifies the assets each party brings to the relationship and outlines how these, and any assets acquired during the relationship are to be divided upon separation.
A couple planning to marry may decide to enter into an agreement that shows what they intend to happen to their money and property if the relationship were to break down. Prenuptial agreements are particularly beneficial where:
- One party has substantially greater capital or income than the other
- One party wishes to protect assets owned prior to the marriage
- It would be beneficial to define what is considered ‘matrimonial property’ or ‘non-matrimonial property’
- One party has children from a previous relationship and wishes to protect assets for the purpose of inheritance planning
- One of both parties have a connection with, or property in, another jurisdiction
Are prenuptial agreements legally binding?
A prenuptial agreement is not automatically binding in England and Wales. However, the terms of a prenuptial agreement may be decisive within the Courts unless it is determined that the effects of the agreement would be unfair.
The Supreme Court determined in Radmacher v Granatino that the courts should give effect to an agreement provided that it was freely entered into by both parties with a full understanding of its consequences, unless in the circumstances it would be unfair to hold them to it. The Supreme Court stated that ‘the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’ In practice, a well-prepared agreement now carries real weight and will often be the starting point for how a court approaches a financial settlement.
What makes an agreement persuasive?
The weight a court gives a prenup depends heavily on how it was made. To reduce the likelihood of the court refusing to uphold the agreement on the ground that it is unfair, both parties will need to set out their financial circumstances in full and take independent legal advice on the agreement and its effects.
The courts have indicated that in order for an agreement to be considered fair, these key elements will be considered:
- That neither party felt pressurised to enter into the agreement
- Whether both parties to the agreement had independent legal advice before entering into it.
- Whether there was full financial disclosure (both parties having sufficient information to make an informed decision as to whether to enter into the agreement with a full understanding of its applications).
- Whether the terms of the agreement provides for both parties’ basic needs to be met in the event of a divorce.
Additionally, agreements are less likely to be considered unfair if they are recent or if circumstances have not changed since the agreement was entered into. Therefore, it is common to build provision for the agreement to be reviewed, either after a period of time has elapsed, or when a specified ‘trigger’ event occurs.
The agreement should also be put in place in good time before the wedding rather than sprung on a partner at the last minute. Although not a legal requirement under current law, it is good practice for agreements to be entered into at least 28 days before the wedding.
Ultimately, you should not enter into a prenuptial agreement unless you intend to be bound by the terms of that agreement.
What a prenup can and cannot do
A prenuptial agreement can be a useful way to protect wealth built up before the marriage, possibly to keep an inheritance or a family gift separate, to set out how a family business should be treated, or to clarify what each person is bringing into the relationship. For couples marrying later, or for second marriages, it can help ring-fence assets intended for children from an earlier relationship. Prenuptial agreements can provide more certainty as to financial arrangements in the event of a divorce, provided the agreement represents a fair arrangement for both parties.
A prenuptial agreement cannot provide that the court will not be able to consider financial issues in relation to the marriage, as that would be contrary to ‘public policy’. Neither party can therefore agree that they will not make an application for financial provision from the court.
An agreement cannot override the court's duty to meet the basic financial needs of either spouse or, crucially, of any children. Circumstances can change, and in the event of a dispute the court will look at the parties’ circumstances as they are at the time the agreement is being considered by the court. What may have been fair at the time of the agreement may not be considered fair if either party’s circumstances have changed significantly.
A change on the horizon
In June 2026 the government published a consultation, A Fairer End to Relationships, which proposes introducing legally binding "qualifying nuptial agreements". Under the model being consulted on, an agreement that met certain safeguards would be binding on the court, rather than merely influential. Those safeguards would include the agreement taking the form of a deed, being signed at least 28 days before the wedding, and being supported by financial disclosure and independent legal advice on both sides. Even then, couples would not be able to contract out of meeting each other's needs or those of their children.
An important point is that this is a proposal, not the law. Any change would then require the government to legislate, which could take some time and may look different from what is currently proposed.
Key takeaways
Prenuptial agreements are not legally binding in England and Wales. However, they have been regarded by the court as persuasive and even decisive. Correctly executed agreements are very likely to influence the outcome of financial remedy proceedings.
Therefore, A prenuptial agreement can offer real reassurance if it is properly prepared, honestly disclosed and entered into in good time. A poorly drafted or rushed agreement may carry little weight when it matters most.
If you would like to discuss nuptial agreements or your situation more generally, our Family Team would be pleased to assist. To arrange an appointment, please call on 01689 887887 or email cwj@cwj.co.uk.