The Current Legal Position
Prenuptial agreements are not automatically legally binding in England and Wales. Unlike many European countries and most US states, English law gives the court a wide discretion under Section 25 of the Matrimonial Causes Act 1973 to divide assets based on fairness, and no private agreement can completely override that discretion.
However, following the Supreme Court's landmark decision in Radmacher v Granatino [2010], courts will give decisive weight to a prenuptial agreement provided that certain safeguards are met.
The Radmacher Test
The Supreme Court held that a prenuptial agreement should be given effect unless it would be unfair to hold the parties to it. In practice, courts consider three broad questions:
- Was the agreement entered into freely? — Neither party should have been pressured, coerced, or exploited
- Did both parties understand the implications? — Each party should have received independent legal advice and there should have been full financial disclosure
- Would it be fair to hold the parties to the agreement in the circumstances at the time of divorce? — The court looks at whether the agreement would leave either party in a situation of real need
What Makes a Prenup More Likely to Be Upheld
Procedural Safeguards
- Both parties should receive independent legal advice from separate solicitors
- There should be full and frank financial disclosure — both parties must know what the other owns and earns
- The agreement should be signed at least 28 days before the wedding (ideally much earlier) to avoid any suggestion of last-minute pressure
- There should be no undue influence — an agreement signed after one party threatens to cancel the wedding is less likely to be upheld
Content Safeguards
- The agreement should ensure that both parties' needs are met, including housing and income needs
- It should provide for children — the court will not uphold any provision that prejudices the welfare of children
- It should include a review clause requiring the agreement to be reconsidered at significant life events (birth of children, major illness, significant change in circumstances)
What a Prenup Can and Cannot Do
Can Do
- Ring-fence pre-marital assets and inheritances
- Protect a family business from being divided on divorce
- Specify how jointly acquired assets will be divided
- Protect one party from the other's debts
Cannot Do
- Determine child custody or child maintenance — the court will always decide based on the child's best interests
- Leave one party destitute or in a position of real need
- Include punitive clauses (e.g. "if you commit adultery, you get nothing")
- Override the court's statutory discretion entirely — a judge always retains the power to depart from the agreement if fairness requires it
Postnuptial Agreements
A postnuptial agreement is signed after the marriage. It carries the same legal weight as a prenuptial agreement — in fact, some solicitors argue it carries slightly more weight because neither party can claim they signed under pre-wedding pressure. The same safeguards apply.
How Much Does a Prenup Cost?
Solicitor fees for a straightforward prenuptial agreement typically range from £1,000 to £3,000 per party. For complex estates or high-net-worth individuals, costs can be considerably higher. Both parties need their own solicitor, so the total cost for the couple is double.
The Law Commission's Recommendation
In 2014, the Law Commission recommended that "qualifying nuptial agreements" should be made binding by statute, provided they meet certain requirements. This recommendation has not yet been implemented, but it signals the direction of travel for future reform.
Practical advice: A well-drafted prenuptial agreement is far better than none. Even though it is not automatically binding, a properly executed prenup that follows the Radmacher guidelines will be very difficult for the other party to overturn. Start discussions early and ensure both parties have their own solicitor from day one.
