Prenuptial Agreements

When embarking on significant life events, it is easy to overlook the legal considerations that can shape long-term outcomes.

Prenuptial Agreements are Agreements made by a couple before their marriage or civil partnership. They can play a crucial role in providing clarity, protecting assets, and fostering transparency between parties from an early point.

This article will explore who may benefit from these agreements, why they are essential in various circumstances, and when they should be considered. By addressing these points, we aim to highlight the importance of proactive planning in safeguarding personal and financial interests throughout different stages of a relationship.

Why enter into a Prenuptial Agreement?

Parties about to get married may want certainty about their financial security if things go wrong and they end up getting a Divorce. They may want to protect assets they are each bringing into the marriage and agree a mechanism for sharing anything acquired jointly. Parties will be keen to ensure that they are each provided for in the event that they Divorce.

What is the legal status of Prenuptial Agreements? Are they enforceable?

Firstly, we must consider when and why the Agreements would need to be enforceable.

In many cases, the validity of a Prenuptial Agreement may not be tested. The couple may remain happily married and never separate or Divorce. But what if they don’t?

It is important to consider whether entering into a Prenuptial Agreement is worthwhile as a safeguard in the event of a separation or Divorce, and what factors are likely to make the Agreement more useful.

If a married couple entered into a Prenuptial Agreement prior to their marriage, it is reasonable to assume that they both do so at that point expecting the terms to be followed if their relationship breaks down.

If the relationship does break down and the parties Divorce, it may be the case that both parties are content to resolve the financial aspects of their Divorce in the manner outlined in the Prenuptial Agreement. However, there are situations where one party is content to do so but the other spouse is not – perhaps because circumstances have changed since the Agreement was signed and/ or they believe that the terms are now unfair because the circumstances in which it was made were not appropriate.

In those situations, the Court is likely to be asked to determine the appropriate financial outcome within ‘Financial Remedy proceedings’ linked to the Divorce. The Court will consider many factors in determining this. Those factors are listed in Section 25 of the Matrimonial Causes Act 1975. The terms of a Prenuptial Agreement are not one of the factors specifically listed in this statutory provision. The Court can however be asked to determine the potential validity of any Prenuptial Agreement as a distinct issue, usually at an early point in a Financial Remedy case.

Up until around 15 years ago, Prenuptial Agreements were regarded as being something only used by celebrities, sports people, the fabulously wealthy and the aristocracy.

Under current Law, Prenuptial Agreements are not automatically enforceable by the courts in England and Wales.

However, in a landmark case in October 2010, the Supreme Court stated that Courts should consider upholding the terms of such Agreements if entered into freely and with full understanding, unless doing so would be unfair. This, coupled with subsequent case law developments, has seen Prenuptial Agreements being used increasingly.

This has prompted calls for reforming marriage laws, including a Law Commission proposal to introduce a new form of marital property agreement. However, the Government is yet to respond to the Law Commission’s recommendations and there is no new legislation in the pipeline at this stage (May 2025).

Despite this, the general view is now that the Family Court will likely give effect to a Prenuptial Agreement that is freely entered into by each party with a full appreciation of it’s implications, unless in the circumstances it would not be fair to hold parties to the agreement.

Where a Prenuptial Agreement has been drafted in the correct circumstances and provides for overall fairness between spouses in the event of their Divorce, it provides parties with clarity going forward. Ideally, it will reduce the risk of costly litigation at a later date.

Identifying potential client needs for Family Law Agreements

Couples about to get married
Couples who had a Cohabitation Agreement whilst cohabiting – perhaps cohabiting in a property owned (and funded) solely by one party for many years prior to the relationship/ marriage;
Couples keen to ensure sharing of any jointly acquired assets but protect pre-owned assets in their sole names, particularly those which are never “mingled” or “matrimonialised”;
Couples wanting to safeguard where there is a gift or “early inheritance” from one party’s family towards their assets which it is agreed should be ringfenced; and
Couples/ families seeking to protect wider Family assets and estates from claims upon Divorce.
Couples who need to consider future financial planning in the event of a marriage breakdown
Those looking to ensure children from current relationships do not “miss out” where their intended spouse has children from other relationships
Those looking to protect with business interests and / or wider family wealth

What might a Prenuptial Agreement cover?

Usually, this will include agreed arrangements for the responsibilities at the outset and during the marriage, i.e. financial responsibilities – who will contribute what to the outgoings including the mortgage, household outgoings and expenses, child care costs, etc.

The primary content of a Prenuptial Agreement may include the following:-

directions about how any shared property is owned, managed, and divided upon Divorce, including bank accounts, debts, and household bills;
intentions regarding financial support for one spouse if the marriage ends or one spouse becomes ill and unable to work or contribute, and how enhanced contributions might impact on the division of assets;
confirm who is to be responsible for any debts accrued, both jointly or individually;
what is to happen to pensions, i.e. how they are to be shared if there is a disparity, and how this is to be calculated;
confirmation of arrangements for the children of the marriage , both during the relationship and if the parties separate or Divorce; and
confirmation about how any children will be supported if the relationship breaks down.

How to go about it?

By definition, a couple would need to be in agreement about what their intentions are to enter into a Prenuptial Agreement. There is no way to compel a party to enter into such an Agreement.

A couple wanting to make a Prenuptial Agreement would need to be transparent with one another regarding their financial affairs, and discuss how they would want them to be divided if their marriage breaks down. They would need to consider potential changes in circumstances, including what they would want to happen if they have children together.

The terms of a Prenuptial Agreement can be agreed directly between the parties, following a negotiation through solicitors or via Mediation.

There should be a full exchange of financial disclosure between the parties, including an examination of the current assets in the picture and how they were funded.

The parties should each seek independent legal advice regarding the potential terms of a Prenuptial Agreement (and also Wills and Lasting Powers of Attorney). The Solicitors appointed by each party are likely to request sight of financial documentation. They will want full details of the current situation and the couple’s future plans.

Once the wording of the draft Prenuptial Agreement is agreed on both sides, it will need to be signed or executed.

For the agreement to be legally binding, it needs to be signed as a Deed, preferably in the presence of witnesses.

Considerations

There are certain points to note with regard to the relevance and enforceability of Prenuptial Agreements. All clients would require detailed and specific advice tailored to their individual needs.

In the event of a marriage breakdown and the issue of Divorce proceedings by one or both parties, their financial claims against one another would be activated under the 3 main headings – namely income, capital, and pensions. Those claims can only be resolved either (i) by agreement between the parties which is then approved by the Court or (ii) upon the Court determining the appropriate financial outcome.

No agreement between parties can override the Court’s jurisdiction to decide on the appropriate division of assets on a Divorce, which means that a Prenuptial Agreement cannot stop one party applying to the Court for financial provision from the other.

If there is an agreement between the parties at the time of the Divorce (which may still reflect the terms of a Prenuptial Agreement), a ‘Consent Order’ would be drawn to reflect the terms and the Court would be asked to approve this at the appropriate stage of the Divorce process. Usually, the Court will approve a Consent Order where both parties have had the benefit of independent legal advice and where the settlement terms do not appear manifestly unfair and make reasonable provision for both parties’ needs.
If there is no financial agreement (for example, if there is no Pre Nuptial Agreement or if one party subsequently disputes the validity or relevance of such an Agreement), then the Court would determine the appropriate outcome during a Court process involving full disclosure of assets, ongoing efforts at negotiation and a sequence of Court Hearings before the Court ultimately makes the final decision regarding the appropriate financial outcome for you both. The Court would look at a range of factors when making this determination and the Court can be asked to make a determination regarding the validity and relevance of a Prenuptial Agreement.

It is important to emphasis that there are never any guarantees that the Court would follow the terms in a Prenuptial Agreement in making their determination. The Court would look at the circumstances in which the Agreement was prepared and signed, and the terms provided for by the Agreement. Generally speaking, the document would have little to no validity if there had not been an exchange of full and frank disclosure between the parties before it was executed AND if both parties had not received (or at least been robustly advised to obtain) independent legal advice. Any Prenuptial Agreement should include reasonable provision for both parties and generally include a review clause to ensure consideration could be given to the provision within the agreement in the event of a change of circumstances. The birth of children (or more children) would be a common example.

The Court would also examine the circumstances in which the Agreement was signed i.e. how close to the marriage date; whether there was any pressure or coercion for one party to sign the document, etc? It is always borne in mind that an Agreement signed several (or many) years before the marriage breakdown, might not accurately reflect the parties’ intentions or a fair outcome now.

The Court would balance the need to consider the unfairness of not upholding an Agreement that had been relied upon, with the need to consider whether the terms within the Agreement represent a fair outcome at the time of the marriage breakdown and adequately meet the parties’ needs going forward.

All parties considering entering into such a Prenuptial Agreement should have regard to the following basic considerations:-

The Agreement can only be entered into if both parties are willing and able to proceed;
There would need to be an exchange of full financial disclosure before the terms of the Agreement are negotiated and agreed;
The parties would both require independent legal advice with regard to the financial situation and the proposed terms, but also the nature and effect of the Agreement;
Until such time as there is full financial disclosure (and potentially an independent valuation of any assets) from both parties to provide a clearer picture of the financial situation, it would be difficult for any legal representative to advise either party regarding the appropriate terms and/ or the likely costs of finalising a Prenuptial Agreement;
It may well be the case that parties’ respective legal representatives will advise that the proposed terms of the Prenuptial Agreement do not reflect the level of award that they might achieve if the Court were to determine the appropriate outcome if their marriage were to break down;
For the reasons noted above, the parties would need to bear in mind that the terms documented in a Prenuptial Agreement would not necessarily be 100% binding upon the Court in the event of a subsequent dispute if they were to subsequently Divorce;
If either or both parties have any assets overseas, it would also be prudent to take advice in those countries, or at least from lawyers specialising in those jurisdictions, as to the need to enter into ‘mirror’ agreements. Ideally this would be achieved round the same time The lawyers in different jurisdictions will need to liaise with one another;
There would be a need to keep the terms of the Prenuptial Agreement under review even after it is executed. This is because circumstances change over time and the terms agreed now might not be appropriate in years to come. It is important to review and update the Agreement to reflect any new financial commitments or property acquisitions. The Agreement may be less persuasive in a dispute if it is not updated when circumstances change and it is something crucial which has not been catered for.
The arrangements proposed may necessitate the need for further, specialist advice e.g. tax, inheritance, etc; and
The parties would also need to consider making a Will, or updating any existing Will, both to appoint Guardians for their Children and to confirm their intentions for their estates in the event of their death.

Any party considering entering into a Prenuptial Agreement will need specific legal advice based upon their personal circumstances. Please contact our Family Law Specialists for expert advice upon Cohabitation Agreements or visit our Prenuptial and Postnuptial Agreements service page for more information on the support we offer.

Colette Blackburn