Are Prenuptial Agreements Legally Binding in England & Wales?

1. Introduction

People often associate prenuptial agreements (or “prenups”, as they are sometimes known in the UK) with individuals who have extravagant wealth or celebrity status. This is not necessarily accurate: prenuptial agreements are increasingly made by engaged couples who wish to have certainty regarding their future financial affairs before getting married.

Prenuptial agreements are not automatically legally binding, in the way that a commercial contract might be. That said, contrary to the commonly held myth that they are ignored by the court, they may be afforded significant weight – provided they meet certain criteria. This article explains the criteria for a legally valid prenuptial agreement, and explains the practical value of such an agreement.

For a broader overview of financial remedy, see our recent article: A Guide to Financial Remedy Proceedings

2. What is a prenuptial agreement?

A prenuptial agreement is a formal written agreement created between two partners prior to marriage, and aims to set out their intentions for how their financial affairs are to be managed.

The agreement might outline how, in the event of divorce, the parties would divide assets such as properties, savings and investments, business interests, inheritance, pensions, and debts. It might also make provisions for the handling of assets during the marriage, such as whether a joint bank account will be used.

It is worth noting that prenuptial agreements deal strictly with financial provisions regarding the parties to the agreement. They cannot include child-related matters such as child arrangements or child maintenance, nor can they set out intentions regarding the parties’ personal conduct.

3. Is a prenuptial agreement legally enforceable?

As mentioned, a prenuptial agreement is not automatically legally binding. This is because the family court retains a broad discretion under section 25 of the Matrimonial Causes Act 1973 to make an order that it regards as fair. The court is thus not bound to make an order in the terms imposed by a prenuptial agreement. Nevertheless, prenuptial agreements carry considerable weight. In the landmark case of Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, the Supreme Court set out this approach. The court held that where a prenuptial agreement was entered into freely, the parties were fully informed of its implications, and it remains fair to uphold, the agreement will most likely be determinative. The meaning of this in practice can be broken down into two parts: the validity of the agreement at the time it was made, and the current fairness of the agreement at the time of making the financial order.

4. Test 1: was the agreement freely entered and informed?

In Radmacher v Granatino, the court held that it must be clear that the parties intended the agreement to govern their financial affairs on divorce, and that they fully understood the legal implications of the agreement. In assessing these elements, the court must consider whether there are any vitiating factors present. These are factors which may invalidate a contract under contract law, and include:

• fraud;
• duress (e.g. one party threatening the other to sign the agreement); and
• misrepresentation (i.e. a false or misleading statement made by one party, which influences the other to sign the agreement).

Although Radmacher v Granatino emphasised these factors, the court supplemented this guidance with that of Edgar v Edgar [1980] EWCA Civ 2. In Edgar v Edgar, the Court of Appeal emphasised the need to look beyond “formal legal terms” like the above vitiating factors, given that “all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage”. Radmacher v Granatino explained at [71] that such circumstances might include “unconscionable conduct such as undue pressure”, and “exploitation of a dominant position to secure an unfair advantage”. In assessing whether these elements are present, the court will consider the facts of the case, for example: the age of the parties; the emotional state of the parties; whether the parties were previously married; and, whether the marriage would have proceeded had the agreement not been signed.

That said, in WC v HC [2022] EWFC 22, the court noted at [31] that “a degree of pressure” is normal in making nuptial agreements. To undermine the validity of the agreement, any influence would have to exceed the normal pressure and tension involved in such negotiations. KA v MA [2018] EWHC 499 affirmed this threshold. In this case, the husband only agreed to proceed with the marriage if a prenuptial agreement was signed; however, the court held that this did not constitute undue pressure or exploitation. In explaining this, the court emphasised that the wife was a mature and financially independent adult, who had received independent legal advice. She was also aware from the start of the relationship that the husband would only marry with an agreement in place. On these facts, the husband’s insistence on an agreement did not undermine the wife’s consent to the agreement.

While the agreement must be freely entered into on an informed basis, Radmacher v Granatino confirmed that formal independent legal advice and full financial disclosure − while advisable steps − are not prerequisites for these criteria being met. Instead, the focus should be on whether, as the judgment held at [69], the parties “[…] have all the information that is material to his or her decision, and […] intend that the agreement should govern the financial consequences of the marriage coming to an end”.

5. Test 2: is the prenuptial agreement fair?

In making orders on the division of assets, the court is guided by the principle of fairness – as established in the landmark cases of White v White [2000] UKHL 54 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. This principle is undergirded by three pillars: needs, compensation, and sharing. For a detailed explanation of these principles, see our article: How does the Family Court split assets in a divorce?

When considering prenuptial agreements, the court relies on the same principle of fairness: where the agreement would be unfair to uphold, the court will not enforce it. However, whilst fairness usually involves a presumption of equal sharing of assets, this does not necessarily apply where the parties’ prenuptial agreement has set out otherwise: if this were the case, there would be minimal reason to draft an agreement on the division of assets.

That said, while the agreement might override the sharing principle, it cannot override the consideration of needs and compensation. For example, the court would likely determine the agreement to be unfair if it were to:

• leave a party in financial hardship following divorce; or
• allow one party (say, the “breadwinner”) to retain a large majority of the wealth despite contributions by the other party (say, the “homemaker”) which facilitated the accumulation of such wealth.

As with financial remedies broadly, a fair agreement also depends on the facts of each case. As Radmacher v Granatino suggested, a prenuptial agreement determining the “ring-fencing” of a particular type of solely-owned asset − such as one party’s inheritance − is likely to be given weight. However, if the agreement makes provisions on a breadth of financial affairs and it preceded a lengthy marriage, changes in circumstances since the agreement – such as redundancy, bankruptcy, illness, and obligations to relatives and children – might make it unfair in the current context, and therefore it would be afforded less weight.

That said, the court will not pore over an agreement unnecessarily. BN v MA [2013] EWHC 4250 at [17] confirmed that the court should not “open the Pandora’s Box of litigation” unless there is demonstration of the agreement being unfair. Ultimately, parties make an agreement to avoid expensive and burdensome litigation down the line: if the agreement gives effect to an outcome that a court would reasonably regard as fair, it is highly likely to be upheld.

Notably, if the parties have children, the prenuptial agreement cannot be enforced to the detriment of the children’s needs. In making financial orders, the welfare of any children is the primary consideration under section 25(1) of the Matrimonial Causes Act 1973; this applies whether or not a prenuptial agreement has been made.

6. Benefits of a prenuptial agreement: should we sign one?

In considering whether to make a prenuptial agreement, there are often two common misconceptions at play.

Firstly, some people view a prenuptial agreement as indicating a lack of commitment to the marriage, i.e. it implies the likelihood of divorce. However, a prenuptial agreement is simply a way of creating some certainty regarding the financial affairs in the unfortunate event that the relationship was to break down.

Secondly, as mentioned above, prenuptial agreements are often associated with extravagant wealth. While such agreements are more common among high-net-worth individuals, they can add value in a range of situations, such as where one partner:

• has existing wealth which they wish to “ring-fence”, such as inheritance;
• is in a significantly different financial position to the other;
• is a business owner, and wishes to protect business interests in the event of divorce; or
• wishes to keep separate any assets intended for children of a previous marriage.

In such scenarios, a prenuptial agreement can be beneficial. Not only may it offer peace of mind during the marriage, as it provides clarity around financial intentions from the outset, but may also reduce conflict in the event of divorce. The latter can help to avoid lengthy and expensive litigation; while the prenuptial agreement itself incurs costs, this is usually much less than the total costs of ongoing court proceedings.

A concept closely related to prenuptial agreements is that of matrimonial versus non-matrimonial assets, which refers to the categorisation of assets which “belong to” the marriage (i.e. they emanate from sources internal to the marriage) versus those which are external to the marriage. This distinction is highly relevant to how assets may be safeguarded on divorce, as non-matrimonial assets tend to be “ring-fenced”. For more detail on this, see our article: Non-Matrimonial Assets in Divorce: Can inheritance, gifts and pre-marital property be protected?

7. Practical advice: how do you make a valid agreement?

If you decide to proceed with a prenuptial agreement, it should meet the criteria set out above. To summarise, the agreement should be:

• freely entered into, on an informed basis: full financial disclosure and independent legal advice are advisable (albeit not mandatory) factors in helping to ensure these criteria are met; and
• well-drafted, setting out clear and fair provisions that may account for possible changes in circumstances; this might include a review clause, for example stating that the agreement shall be revised if the parties have a child.

8. How we can help

Before making a prenuptial agreement, you should think carefully about its suitability for you, as well as how to make it legally robust. Our specialist family barristers can provide advice on these questions, as well as help draft the agreement itself. We also have parallel expertise in civil law as well as corporate and commercial law, making us well-positioned to provide support on matters relating to technical trust or business interests that arise in relation to the making or enforcement of a prenuptial agreement.

If you need legal support in financial remedy proceedings, we can provide full or specific services depending on your needs, including:

• Strategic Advice: we can advise you generally on your matter, including providing guidance on the strength of your potential case if you are involved in court proceedings.
• Legal Drafting: we can assist with drafting nuptial agreements; as well as documentation for financial remedy proceedings^, such as Form E (or equivalent financial disclosure statements) and witness statements.
• Court Representation: our experienced advocates can appear at all levels of the court to represent you, as well as in alternative dispute resolution hearings.

We work on direct access. This means you can instruct our barristers directly without going through a solicitor. This can save time and reduce costs, while still giving you access to specialist support. Find out more about our direct access offering here.

We represent clients in London, Birmingham, Milton Keynes, Northampton, Bedford, Luton, and across the UK.

You can contact us to book an initial consultation.

Billal Malik is a barrister practising in family law, with extensive experience in children and financial remedy proceedings, particularly those with an overseas or immigration element.

Frequently Asked Questions

What is a postnuptial agreement?

Nuptial agreements outline a couple’s intentions for the management of their financial affairs on divorce: a prenuptial agreement is signed prior to the marriage, whereas a postnuptial agreement is signed during the marriage.

Radmacher v Granatino confirmed that the court should approach the assessment of both pre- and postnuptial agreements with similar principles, so many of the issues explained in this article – such as whether the agreement was freely entered – are relevant to postnuptial agreements.

Are prenuptial agreements common in the UK?

In recent years, prenuptial agreements have become more common in the UK. The landmark decision of Radmacher v Granatino played an important role in confirming that prenuptial agreements can have legal weight in financial remedy proceedings under English law.

How long does it take to prepare a prenuptial agreement?

It can take anywhere from a few weeks to several months to draft and finalise a prenuptial agreement; the exact timeline depends on the facts of each case, including the complexity of the financial affairs. For this reason, it is best to initiate the agreement as early as possible before the wedding, to ensure there is sufficient time to agree the terms.

If we move abroad, will our prenuptial agreement be valid?

As with any matter in financial remedies, prenuptial agreements will not necessarily be treated the same in other countries as they would in the English jurisdiction. If it is likely that you and your fiancé might move abroad, or if you have moved abroad after signing a prenuptial agreement, it is sensible to seek legal advice on the enforceability of the agreement in the foreign jurisdiction, and whether to amend the agreement in light of this.

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