A nuptial agreement allows a couple to set out how their financial affairs will be managed and how assets should be divided if they divorce or (for civil partners) if the partnership is dissolved.
Such agreements can provide certainty and protect assets, but it’s important to understand their legal status and how to ensure they carry weight in court.
Contents of the Agreement
A nuptial agreement can cover one or both of the following:
- Financial arrangements during the marriage or civil partnership – e.g. how day-to-day finances are managed, ownership of property, savings, or who pays certain expenses.
- What happens on divorce or dissolution – how assets and debts would be divided, whether spousal support will be paid, and any other financial provisions if the relationship ends.
The agreement may specify which assets are considered joint or separate, set aside certain assets (like pre-marital property or inheritances) for one party, and outline any maintenance arrangements. It cannot dictate terms regarding children (such as child custody or child support), since those matters remain subject to the court’s discretion for the child’s welfare.
Legal Status in England & Wales (2025)
In England and Wales, nuptial agreements are not automatically binding in law. If a couple divorces or dissolves their civil partnership and cannot agree on finances, the court will decide the financial outcomes under the Matrimonial Causes Act 1973 (for marriages) or the equivalent Schedule 5 of the Civil Partnership Act 2004 (for civil partnerships).
The court has a very broad discretion to consider “all the circumstances of the case” under these laws. A nuptial agreement cannot oust the court’s authority – the judge can ultimately make whatever order they deem fair. In other words, you cannot use a contract to stop the court from making a different financial award.
However, modern case law means that a properly made nuptial agreement will carry significant weight. In the landmark case Radmacher v Granatino (2010), the UK Supreme Court held that courts should give effect to a pre/post-nuptial agreement that was freely entered into by each party with a full appreciation of its implications, unless it would be unfair to hold them to it. In effect, while not binding, a valid nuptial agreement can be decisive in the outcome of a financial dispute.
The existence of the agreement becomes a “relevant circumstance” the court takes into account – and if the agreement meets the criteria set out in Radmacher, judges will typically uphold it. Put simply: a nuptial agreement will not be enforced if it is fundamentally unjust, but if it was entered into freely and with understanding, and nothing unforeseen makes it unfair, then the court is likely to uphold what the couple agreed.
Recent developments:
Following Radmacher, the Law Commission reviewed nuptial agreements. In 2014 it recommended creating a new legal framework for “qualifying nuptial agreements” that would be binding as long as certain safeguards were met. These safeguards (detailed below) include things like each party getting legal advice, full disclosure of finances, and signing the agreement well before the wedding. The Law Commission even produced a draft Nuptial Agreements Bill.
As of 2025, however, these reforms have not been implemented into law. Courts still rely on the Radmacher principles rather than a specific statute on prenups. The topic remains under discussion – the Law Commission’s 2024 scoping report again highlighted the potential benefits of binding nuptial agreements, but no legislation has been passed yet. So, the current law remains that nuptial agreements can strongly influence the outcome but do not absolutely guarantee it.
(Note: Scotland has a different legal system where properly executed prenuptial agreements can be directly enforceable. This article is about the law in England & Wales.)
Best-practice safeguards for nuptial agreements
To maximise the likelihood that a pre-nuptial or post-nuptial agreement will be upheld by the courts, couples should adhere to best practices when negotiating and signing the agreement. The following safeguards are recommended:
Independent legal advice for each party:
Each person should have their own solicitor advising them on the agreement’s terms. This helps ensure both parties understand their rights and are not misled. Having separate lawyers is also evidence that the agreement was entered into freely and with awareness. (In fact, the Law Commission’s proposal would require independent legal advice for a nuptial agreement to be binding.)
Full and frank financial disclosure:
Both parties must provide an honest and complete disclosure of their financial positions before signing. This includes listing all assets, liabilities, income, and significant expected assets. For example, if one party expects to receive a large inheritance or has an interest in a trust, this should be disclosed. Hiding assets or failing to mention foreseeable wealth can render an agreement unreliable.
English courts insist on “material information” about each party’s finances being shared, so that both sides know what they might be giving up by signing. Full disclosure up front reduces the chance of disputes later and supports the validity of the agreement.
Timing – no last-minute signing:
The agreement should be finalised well before the wedding or civil partnership ceremony. Rushing a prenup at the eleventh hour can raise questions of undue pressure. Best practice (following the Law Commission’s guidance) is to sign at least 28 days before the ceremony. This gives both parties ample time to consider the terms. (Indeed, the draft legislation proposed that any agreement signed within 28 days of the wedding would not count as a “qualifying” nuptial agreement.)
While signing a bit closer to the date doesn’t automatically void the agreement, leaving a good margin of time is wise to avoid any argument that someone was cornered into signing under duress or time pressure.
Understanding and formality (signed as a deed):
The agreement should explicitly state that both parties understand the effect of the agreement – namely, that they are voluntarily giving up some of the claims they’d otherwise have on divorce. In line with this, it is recommended to execute the document as a deed, and include a clear statement (often called a “relevant statement”) signed by both spouses to confirm that they understand this agreement may limit the court’s powers to make financial orders.
Using a deed (a formally witnessed document) adds an extra layer of formality and evidences that both parties knew the agreement is intended to be taken very seriously. Essentially, no one should be able to say later “I didn’t realise what I was signing.”
No duress or undue Influence:
It’s crucial that the agreement is entered into freely, without one party pressuring the other. Any whiff of duress, coercion or significant outside influence (for example, pressure from a wealthy parent insisting on a prenup) can undermine the agreement. The circumstances of the negotiation should be fair – both parties must have the opportunity to negotiate terms and even walk away if they don’t agree.
In legal terms, the agreement must be contractually valid and able to withstand challenges like undue influence or misrepresentation. To ensure this, the discussions should start well in advance, and both partners should be mentally competent and acting voluntarily. Evidence of a relaxed, unrushed process – emails, meeting notes, drafts exchanged – can later show that no one was bullied into signing.
Fairness and needs (no unreasonable hardship):
A nuptial agreement should be fair in its overall effect. It cannot be used to leave one spouse destitute or unable to meet basic living needs. Both parties’ financial needs should be taken into account, as well as foreseeable changes (like having children). If an agreement would cause serious hardship or be viewed as patently unfair, a court can and likely will disregard it.
For example, an agreement that gives one spouse everything and the other nothing, regardless of circumstances or long marriage, would almost certainly not stand. The Supreme Court in Radmacher made it clear that a deal that leaves one party in a predicament of real need (or fails to provide for children) would be “unfair” to hold them to.
The Law Commission similarly emphasised that nuptial agreements should not result in unforeseen or unreasonable hardship for either party. In practical terms, this means a well-drafted prenup typically ensures each party will have enough financial provision to live on (perhaps via a lump sum, property or ongoing support) even if it limits claims to a share of the other’s wealth.
Protection of children’s interests:
No agreement can be allowed to prejudice the interests of any children, whether existing or future. The needs of children will always come first in the eyes of the law. A nuptial agreement cannot exclude the court’s ability to make orders for the benefit of children – for instance, parents cannot agree to oust child support obligations. The Law Commission’s 2014 report was clear that even binding “qualifying nuptial agreements” would not permit a couple to contract out of meeting financial needs of their children. So, any prenup should at least state that it’s not intended to limit child maintenance or other provisions for children.
Practically, if the couple plans to have kids (or already have them), the agreement should be generous enough that the children’s primary carer is not left without resources. An example might be providing that the weaker financial party will have housing and income to care for the children, even if other assets are kept separate. If an agreement did, for example, leave one parent without a home or income while the other is wealthy, a court would likely find it unfair to the children and set the agreement aside to ensure the children’s welfare is protected.
Include a review clause:
It is wise to build in a mechanism to review and update the agreement if circumstances change. Common triggers for a review include the birth of a child, a significant change in financial circumstances, or simply the passage of a certain number of years. For instance, a prenup might say that the terms should be reconsidered after, say, 5 or 10 years of marriage, or upon the birth of any child. A review clause acknowledges that life can evolve in ways the couple didn’t anticipate, and it provides an opportunity to adjust the agreement to keep it fair.
Importantly, if a review event occurs, the couple should actually follow through: revisit the terms, exchange updated financial disclosure, and sign a short supplemental agreement (with legal advice) if needed to reflect the new situation.
There is a good example of a case where a prenup had a clause to review it upon the birth of the first child, but no review happened – when the marriage ended, the court decided it would be unfair to hold the wife to the un-reviewed prenup, precisely because having children changed the needs in the marriage. In short, a prenup should not be a “set and forget” document. If relevant circumstances change, it should be revisited to remain relevant and fair.
Clearly identify non-matrimonial property:
One key use of nuptial agreements is to ring-fence certain assets – typically assets one spouse owned before the marriage, or gifts/inheritances received from family – so that they are treated as “non-matrimonial property” not subject to equal sharing on divorce. If the couple wants this, the agreement should spell out which assets are considered non-matrimonial and confirm that each party will keep their own in the event of divorce.
English courts do distinguish between matrimonial assets (acquired or built up during the marriage through joint efforts) and non-matrimonial assets (brought into the marriage or inherited/gifted externally). A well-drafted agreement can list, for example, “Party A’s pre-owned business, X account, and Y property will remain that party’s separate property.” This clarity can prevent arguments later.
Notably, the UK Supreme Court recently reinforced the protection of non-matrimonial property in Standish v Standish [2025] UKSC 26. In that case, the court confirmed that the sharing principle (the idea that matrimonial assets should be divided equally) “applies exclusively to matrimonial property” – it does not apply to non-matrimonial assets unless those assets have been “matrimonialised” (meaning the couple intentionally treated them as shared over time). Non-matrimonial assets are essentially ring-fenced from equal division, except to the extent they might be needed to meet one spouse’s financial needs.
This judgment underscores the value of defining non-matrimonial property in a prenup. For example, if one spouse owns a family business or expects a large inheritance, a prenup can state that those remain that spouse’s separate property. Barring special circumstances, the court will generally respect that classification.
By following these best-practice steps, a couple greatly increases the chances that their pre-nuptial or post-nuptial agreement will hold up in court. While such an agreement cannot absolutely guarantee a particular outcome (since the court always has the final say under the law), a well-prepared agreement that meets all the criteria will usually be honoured by the court. In the words of the Supreme Court in Radmacher, if done correctly, “it will be natural to infer that parties who enter into [a nuptial] agreement … intend that effect should be given to it”.
Jennifer Wiss-Carline is a practising Solicitor regulated by the SRA and a Chartered Legal Executive (FCILEx), bringing over two decades of experience to her practice. Specialising primarily in Private Client law, Jennifer expertly handles matters including Wills, Inheritance Tax and Estate planning, Lasting Powers of Attorney for individuals and businesses, Deputyship Orders and more.
