You Want a Prenuptial Agreement
A prenuptial agreement sets out how assets should be divided if the marriage breaks down. English courts are not bound by prenups but will give them significant weight if properly executed.
Quick Answer
Prenuptial agreements are not automatically binding in England and Wales, but since Radmacher v Granatino [2010] UKSC 42 the Supreme Court has held that courts should give effect to them unless it would be unfair to do so. Full financial disclosure, independent legal advice for both parties, and signing at least 28 days before the wedding are essential requirements for enforceability.
Full Explanation
Unlike some jurisdictions, English law (under the Matrimonial Causes Act 1973) does not give prenuptial agreements automatic binding effect. On divorce, a court exercising its discretion under section 25 of the MCA 1973 considers all the circumstances, including any agreement made between the parties. Since the Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, however, the position has significantly changed: the court should give effect to a nuptial agreement 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 it.
For a prenuptial agreement to be given substantial weight, the following conditions should be met. First, both parties must make full and frank disclosure of their financial positions — assets, income, liabilities, and financial expectations. Concealment of assets will undermine the agreement. Second, both parties must have received independent legal advice from separate solicitors before signing. Agreements where one party was advised by the other's solicitor, or had no advice, are far less likely to be upheld. Third, the agreement should be signed at least 28 days before the wedding — a last-minute agreement signed the day before the ceremony may be treated as made under duress. Fourth, the agreement must not make provision that leaves either party or any child in a predicament of real need.
A prenuptial agreement should address: how pre-acquired assets (property, investments, businesses owned before the marriage) are to be treated; how inherited assets are to be treated; what happens to assets acquired during the marriage; spousal maintenance provisions; and provisions that may change if children are born. Courts will scrutinise provisions that leave a financially weaker spouse in real need, especially where children are involved.
Following the Law Commission's 2014 report 'Matrimonial Property, Needs and Agreements', the government has consulted on making 'qualifying nuptial agreements' fully binding. As of 2026, primary legislation has not yet been enacted, so the Radmacher approach — giving significant but not automatic weight — remains the law.
Post-nuptial agreements (made after the marriage has taken place) are treated in the same way as pre-nuptial agreements following Radmacher. Separation agreements — made when the parties have decided to separate — are also contractually binding in many respects but courts retain jurisdiction over children and financial matters.
Legal Basis
- §Radmacher v Granatino [2010] UKSC 42 — leading Supreme Court authority on prenuptial agreements
- §Matrimonial Causes Act 1973 s.25 — court's discretion in financial remedy proceedings
- §Law Commission Report — Matrimonial Property, Needs and Agreements (2014)
What To Do
Instruct a Family Solicitor
Each party should instruct their own family solicitor independently. The agreement must be drafted sufficiently in advance of the wedding — ideally at least 3 months before — to allow time for disclosure, negotiation, advice, and signing at least 28 days before the ceremony.
Exchange Full Financial Disclosure
Both parties must provide comprehensive financial disclosure — bank statements, property valuations, business accounts, pension values, investments, and liabilities. Attach the disclosure schedules to the agreement as annexes.
Each Party Takes Independent Legal Advice
Each party's solicitor must advise them on the effect of the agreement and whether it is fair. The solicitor should confirm in writing that they have given advice and that their client has signed with a full understanding of the implications.
Sign at Least 28 Days Before the Wedding
The agreement must be signed — and the signing process witnessed — at least 28 days before the marriage ceremony. Both parties should sign identical copies.
Important Deadlines
Important Warnings
A prenuptial agreement will not be upheld if it leaves either party (or any child) in a predicament of real financial need — courts will always retain jurisdiction to ensure basic needs are met.
Concealing assets at the time of the agreement will undermine its enforceability — full and honest disclosure is essential.
The agreement should be reviewed and potentially updated if circumstances change significantly — for example, on the birth of a child or a major change in either party's financial position.