Pre-Nuptial Agreements in England and Wales: What They Are and How They Work

Are Pre-Nuptial Agreements Legally Binding in England and Wales?

Pre-nuptial agreements are not automatically legally binding in England and Wales in the same way as a contract. Unlike many other countries, there is no statute that makes a prenuptial agreement automatically enforceable. However, following the landmark Supreme Court decision in Radmacher v Granatino in 2010, the courts in England and Wales will give significant weight to a prenuptial agreement — and in many cases will uphold it — provided certain requirements are met.

The key principle from Radmacher is 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 it would be unfair to do so in the circumstances prevailing at the time of the divorce.

In practice, this means a well-prepared prenuptial agreement entered into properly is a powerful document that courts take seriously — even if it is not guaranteed to be followed in every circumstance.

What Does a Pre-Nuptial Agreement Cover?

A pre-nuptial agreement sets out how assets should be divided if the marriage breaks down. It is prepared before the marriage takes place — the earlier, the better, and certainly no less than 28 days before the wedding date.

A pre-nuptial agreement can cover: property owned by each party before the marriage; savings and investments; business interests; pensions; inherited assets or anticipated inheritances; how future assets acquired during the marriage should be treated; and financial arrangements on divorce.

A pre-nuptial agreement cannot override the court's powers on divorce entirely. The court will always consider fairness, the welfare of any children, and whether both parties' reasonable financial needs are met. A prenuptial agreement that left one party in genuine financial hardship on divorce is unlikely to be upheld in full.

What Makes a Pre-Nuptial Agreement More Likely to Be Upheld?

The courts in England and Wales are more likely to give full effect to a pre-nuptial agreement where:

• Both parties obtained independent legal advice before signing
• The agreement was entered into well before the wedding — at least 28 days is the minimum recommended, and earlier is better
• Both parties made full and honest financial disclosure to each other
• Neither party was put under pressure to sign
• The terms are broadly fair and do not leave either party unable to meet their reasonable needs
• The agreement is in writing and properly executed

Independent legal advice for both parties is strongly recommended. Our service prepares the pre-nuptial agreement document — we do not provide legal advice on whether the terms are right for your circumstances. Both you and your future spouse should have the document reviewed by your own independent solicitor before signing.

The 28-Day Rule

A pre-nuptial agreement should be signed no less than 28 days before the wedding date. An agreement signed in the days immediately before the wedding may be questioned on the grounds that one party was under pressure to sign, or did not have time to properly consider its terms and take advice.

We cannot accept orders for pre-nuptial agreements where the wedding is fewer than 28 days away.

Post-Nuptial Agreements

If you are already married and want to put in place a formal agreement about your finances, a post-nuptial agreement works in the same way and is given similar weight by the courts in England and Wales. Post-nuptial agreements are often used when circumstances change after marriage — such as one party receiving a significant inheritance or starting a business — and the parties want to record how that asset should be treated.