A Prenuptial agreement is a written contract entered into before marriage (or civil partnership) that sets out how assets and finances should be divided if the relationship breaks down.
While sometimes seen as unromantic, these agreements provide clarity, reduce uncertainty, and help couples make practical and fair decisions about the distribution of wealth should their relationship breakdown.
A Postnuptial agreement serves the same purpose as a Prenuptial agreement but is made after the marriage has taken place.
Successive Postnuptial agreements can be made during the course of the marriage or civil partnership to reflect changes in the couple’s circumstances.
It is also common for parties to enter into a Postnuptial agreement if the Prenuptial agreement was made very close to the wedding, to ensure that any later argument of undue pressure is removed.
In England, pre-nuptial agreements are not automatically binding. No agreement can oust the English court’s powers to make financial orders on divorce.
However, after a Supreme Court case called Radmacher, pre-nuptial agreements have been regarded by the court as a persuasive and even ‘decisive’ factor and provided certain criteria are met, absent manifest unfairness, you should expect to be bound by any agreement that you sign.
The law can be summarised as follows:
“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 in the circumstances prevailing it would not be fair to hold the parties to their respective agreement”.
The criteria which need to be met are:
- Each party has independent legal advice on the terms of the agreement; and
- There is financial disclosure; and
- The agreement should be freely entered into. This means that both parties must have had time to consider and negotiate the agreement and should not be placed under pressure to sign it. The agreement should not be signed so close to the wedding as to give any suggestion that it has been signed under duress (in essence this means that the agreement should not be signed less than 4 weeks before the wedding).
Yes. Independent legal advice is required for the agreement to be upheld as fair.
You cannot force a party to sign an Agreement. They must be freely entered into. Constructive discussions and persuasive negotiations/ compromises can be made to help ease concerns held around the signing of such Agreements.
You should consider entering into a Prenuptial agreement before you get married if you want to determine how your property and finances will be dealt with during your marriage, and what will happen to them if you get divorced.
A Prenuptial Agreement can help you to protect your, or your spouse’s wealth in the event of a divorce. Prenuptial Agreements offer certainty in circumstances where you want control and autonomy in advance of the distribution of your assets on divorce, rather than leaving it to the discretion of the courts.
For entrepreneurs and business owners, a Prenuptial agreement can be an important tool for protecting a business from the consequences of a future divorce. The agreement can specify how business interests, shareholdings, carried interest and partnership interests are to be treated, and can ringfence pre-marital business assets from the matrimonial pool.
Prenuptial agreements are often utilised to safeguard inherited wealth and trust assets, intended to pass through generations of the family. In the Supreme Court’s ruling in Standish v Standish [2025], it was determined that non-matrimonial assets should generally be excluded from the sharing exercise, except as necessary to meet needs. A Prenuptial agreement can help reinforce this exclusion, by documenting the parties’ intentions at the outset of the marriage.
In the absence of a Prenuptial agreement, there will be no restriction on the orders which a court might consider appropriate to make in the event of the marriage or civil partnership breaking down. The parties’ claims will be decided by reference to divorce law as it stands at the time of the divorce or dissolution of civil partnership, even if this doesn’t align with personal wishes. Without a Prenuptial or Postnuptial agreement, your assets could be treated as “marital” assets and any debts brought into the marriage may impact you. This can lead to lengthy and costly legal processes to determine asset division.
Yes, most agreements include a clause for regular review to ensure they remain fair and continue to reflect any changes in a couple’s circumstances, such as financial developments, the birth or adoption of any children, relocation outside the jurisdiction of England and Walkes or other significant life events.
Prenuptial and Postnuptial agreements set out how assets, debts, and financial responsibilities would be dealt with if the relationship breaks down.
Inheritance, business assets and family wealth (such as wealth in a family trust) can be protected in a carefully drafted Agreement, providing the terms are fair and transparent. Future earnings can also be protected.
Yes – but if you or your partner has ties to another jurisdiction, it is wise to seek additional legal advice in those jurisdictions to ensure the Agreement will be upheld should divorce/ separation proceedings be commenced elsewhere. It is not possible to have a single global agreement that would be enforceable worldwide and it may be necessary to prepare mirror agreements in each jurisdiction to ensure enforceability.
(i) Transparency: - pre and Postnuptial agreements require full financial disclosure, ensuring both parties have a complete understanding of each other’s financial situations.
(ii) Certainty: - pre and Postnuptial agreements provide clarity and certainty in the evidence of divorce or civil partnership dissolution.
(iii) Wealth preservation: - pre and Postnuptial agreements are often used to protect family assets, businesses and inheritances from being divided on divorce. Those with children from a previous marriage can also safeguard their financial interests with an Agreement.
These agreements can also make provision for future assets, including expected inheritances or future financial gains. This is particularly relevant for individuals who anticipate receiving family wealth or who expect to build significant assets during the marriage.
We recommend starting the process as early as possible and it should ideally be signed at least 28 days prior to the wedding. There needs to be sufficient time to provide financial disclosure, take advice and negotiate the terms without the risk of undue pressure.
A Prenuptial or Postnuptial agreement is normally executed as a deed, which means it must be formally signed and properly witnessed to be validly completed. This formal execution process is essential to ensure the agreement is legally effective as a contract between the parties and can be given proper weight by the court if it is later relied upon.
A Prenuptial agreement should be signed at least 28 days before the marriage with all assets and property owned by both parties disclosed.
The cost can vary dependant on complexity, the level of negotiation required and whether advice from differing jurisdictions is required. The typical cost of a Pre or Post Nuptial Agreement at Clarence Family law is in the range of £3,500 to £7,500 plus VAT should we deal with the drafting of the Heads of Terms and Agreement, or £3,000 to £5,000 to advise and input on an existing draft. A customised estimate will be provided at the outset of instruction, and a fixed fee can be agreed in certain circumstances, once the scope of the work has been assessed.
Yes. Prenuptial agreements are not automatically binding in England and Wales. The court is not automatically bound by what the parties agreed to before the wedding. It will always have the power to depart from a Prenuptial agreement where enforcing it would produce an unjust result.
Whether the agreement was signed under pressure, there was inadequate financial disclosure, whether circumstances are materially different from those at the time it was signed, or whether one party’s needs are now simply not met by the provision outlined in the agreement, there are established routes to challenge a Prenuptial agreement and seek a higher award from the court.
However, even where a court determines that a Prenuptial agreement should not be upheld, its existence can represent a magnetic factor to reduce a capital award to a party. This provides recognition of the parties’ autonomy to enter into a agreement, whilst ensuring needs were not overlooked.
