What You Need to Know About Pre-nuptial Agreements

What is a pre-nuptial agreement?

A pre-nuptial agreement is a written contract between two people who plan to marry. It sets out how assets, property and finances should be divided if the marriage ends. Couples use them to protect wealth they bring into the marriage, family inheritances, or business interests.

In England and Wales, pre-nuptial agreements are not automatically legally binding. Courts may give them significant weight when deciding financial settlements on divorce, but only if they consider the agreement fair and valid at the time of the proceedings. This approach developed following the Supreme Court's decision in Radmacher v Granatino in 2010. The law differs in Scotland, where pre-nuptial agreements have stronger legal standing.

The Radmacher case and why it matters

The case that shaped how courts treat pre-nuptial agreements involved a German heiress and her former husband, a banker who later became a student. They signed an agreement in Germany in 1998 before marrying. When they separated in 2006, the husband challenged the agreement, arguing it had no standing under English law.

The Supreme Court disagreed. It ruled that courts should give effect to a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless it would be unfair to hold the parties to it. This set a precedent for how courts consider these agreements, though it did not make them automatically enforceable.

The husband received a financial settlement of £1m and use of a £2.5m property until his youngest child reached adulthood. This outcome reflected both the original agreement and the court's broader assessment of fairness. The wife's wealth, largely inherited from her family, was estimated at over £100m.

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What makes a pre-nuptial agreement more likely to be upheld?

Courts will consider several factors when deciding how much weight to give an agreement:

• Whether both parties received independent legal advice before signing
• Whether there was full and honest disclosure of assets and finances by both sides
• Whether the agreement was signed well in advance of the wedding, usually at least 28 days before
• Whether either party was under pressure or duress when signing
• Whether the terms are fair and meet the reasonable needs of both parties and any children

An agreement signed the night before a wedding, or one where a party was pressured into signing without legal advice, will carry far less weight. Courts also consider whether circumstances have changed significantly since signing, such as the birth of children or serious illness. Where following the agreement would cause serious unfairness, particularly regarding children's needs, courts retain discretion to depart from it.

Getting a pre-nuptial agreement in place

If you are considering a pre-nuptial agreement, it is vital both partners instruct separate solicitors to ensure independent legal advice tailored to each individual's financial situation and rights. A solicitor can also help draft terms that are more likely to be respected by a court and advise on potential tax implications of asset division.

The cost will vary depending on the complexity of your finances, but it typically ranges from several hundred to several thousand pounds. Resolution, the family law organisation, maintains a directory of qualified family law solicitors across England and Wales and provides guidance on these agreements.

You can also draw up a post-nuptial agreement after marriage. Courts treat these in a similar way, applying the same factors when assessing fairness and whether parties entered freely.

A properly prepared pre-nuptial agreement can protect specific assets such as a family business or inheritance and establish financial independence for both parties if the marriage ends. They are not a guarantee, but they carry real weight in court proceedings. For current guidance on divorce and financial settlements, GOV.UK provides official information on the legal process.