Are Prenuptial Agreements Legally Binding in the UK?

The short answer to the question ‘are prenuptial agreements legally binding in the UK?’ is no but please read on as prenuptial agreements can save you a lot of money. They are the financially prudent and the sensible, if unglamorous part, of wedding planning.​

What is a prenuptial agreement?

A prenuptial agreement is an increasingly common document that an engaged couple enter into prior to their marriage. If someone isn’t sure what a prenuptial agreement is or what it does then they can be more wary about signing the document so it is best not to make assumptions about your partner’s understanding of what a prenuptial agreement is and will do.

In essence a prenuptial agreement will govern how a couple will regulate and resolve their financial affairs in the event of a separation. The prenuptial agreement is bespoke to the couple and can be as detailed or as simple as the couple prefer.

Prenuptial agreements and UK family law

Now is a good time to answer the question ‘are prenuptial agreements legally binding in the UK?’ That’s because the leading family law case report on prenuptial agreements was ten years old in October 2020. The case remains good case law that is followed by family law judges when they are asked to consider a prenuptial agreement in divorce and financial settlement proceedings. The judges follow this case report, and later decided cases, in the absence of any UK legislation on the status of prenuptial agreements in UK divorce law.

The leading family law case on prenuptial agreements remains the 2010 UK Supreme Court decision of Radmacher v Granatino.

What is the legal status of prenuptial agreements?

A prenuptial agreement doesn’t have any statutory or legislative basis and isn’t a binding contract in the same way as a commercial contract. However, that doesn’t mean that a prenuptial agreement doesn’t have legal status. It gets its status from case law, particularly from the leading court case of Radmacher.

Prior to the case of Radmacher prenuptial agreements were thought to be contrary to public policy because they might encourage separation, though the reality was couples wanted to enter into prenuptial agreements, not with a view to separation, but to cover that eventuality, in the same way couples organise life insurance, Wills and Lasting Powers of Attorney. The Radmacher case acknowledged the importance of couples being able to freely enter prenuptial agreements.

The status of prenuptial agreements after the Radmacher court case

In the Radmacher case a French husband and a German wife entered into a prenuptial agreement three months before their marriage. In essence, the prenuptial agreement said that neither the husband nor the wife would make a claim on the other’s property if they separated and got divorced. The couple had two children together but eventually separated. The husband made a financial claim and the wife said the prenuptial agreement should be binding on him.

During the financial court proceedings the court had to assess the relevance of the prenuptial agreement. The wife, who was heir to family wealth, said the prenuptial agreement should be binding but the husband argued that it wasn’t. His argument was based on the fact that he did not have legal advice when he agreed to the prenuptial agreement, there had been no financial disclosure or negotiations before the agreement was signed and the couple had children after entering into the agreement.

The court case went all the way to the Supreme Court and that’s why it remains a leading case on the status of prenuptial agreements in financial court proceedings. The Supreme Court said that ‘’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 agreement.”

The key points from the Radmacher case is that your prenuptial agreement must be freely entered into and should be fair.

What is a freely entered into and fair prenuptial agreement?

As it is ten years since the Radmacher decision not only are more couples choosing to enter into prenuptial agreements but the family court is also being asked to look at the relevance of prenuptial agreements in divorce and financial proceedings.

If you are looking at signing a prenuptial agreement then it is important to ensure that your agreement is drafted by a prenuptial agreement solicitor who knows what the court will look at when deciding whether to enforce the agreement or to give it weight in any financial court proceedings.

Whilst prenuptial agreements are not currently automatically enforceable as a contract the family court will either enforce it or give weight to the terms of the prenuptial agreement (thus potentially reducing the size of the financial settlement that would otherwise have been awarded in divorce and financial proceedings ) if the following formalities are met:

• The terms of the prenuptial agreement must be fair to both parties and must meet the needs of any children
• There must have been financial disclosure so that the husband and wife each had an understanding of the other’s financial position so they could make informed decisions about the content of the agreement and whether to sign it
• The prenuptial agreement should be signed at least twenty one days prior to the marriage ceremony or civil partnership
• The agreement should be freely entered into with no duress or undue influence or misrepresentations about signing the prenuptial agreement
• Both parties to the prenuptial agreement should take their own independent legal advice before signing the document.

Is a prenuptial agreement a good idea?

Since the Radmacher case prenuptial agreement solicitors have seen a substantial rise in enquiries about both prenuptial agreements and postnuptial agreements. That is because, in today’s age, couples want to plan and feel financially secure, whatever the future holds for them. To a family solicitor that is just sensible and prudent planning from a committed and switched-on couple who don’t want to engage in expensive court litigation should they decide to separate at a later date.

Our Prenuptial Agreement Solicitors

For help with your prenuptial agreement or postnuptial agreement call the friendly, specialist prenuptial agreement solicitors at Evolve Family Law or complete our online enquiry form. Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open with social distances measures in place for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.