A Pre Nuptial Agreement is entered into before a marriage or civil partnership takes place, setting out how assets, property and finances should be dealt with if the relationship later breaks down. Done properly, it can remove a lot of the uncertainty and cost that comes with arguing about money during a divorce.
Pre nuptial agreements are often considered where one person enters the marriage with significantly greater assets than the other, where wealth has been accumulated before the relationship began, or where family wealth, inherited assets or business interests need protecting. They’re also common in second marriages, particularly where one or both parties want to preserve assets for children from a previous relationship. You don’t need significant wealth for one to be worthwhile. Some couples simply want the clarity and peace of mind, regardless of what they own. Get the drafting wrong, skip disclosure, or rush someone into signing, and there is a real risk that the agreement will not be upheld by the court.
Led by Sobiah Hussain, Head of Private Family Law, our team advises clients across England and Wales on all aspects of pre-nuptial agreements, whether you’re starting from scratch, reviewing a draft prepared by another solicitor, or seeking advice ahead of a forthcoming marriage or civil partnership.
What Can Be Included in a Pre Nuptial Agreement?
A pre nuptial agreement can address a wide range of financial issues, including:
- Inherited assets and future inheritances
- Property and the family home
- Business interests
- Savings and investments
- Pensions
- Financial support following separation
Are Pre Nuptial Agreements Legally Binding?
Pre-nuptial agreements are not automatically binding in England and Wales. The court retains the power to decide what happens to a couple’s finances on divorce, and an agreement cannot remove that power entirely.
However, the Supreme Court confirmed in Radmacher v Granatino [2010] UKSC 42 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.”
Whether the court gives weight to your agreement usually comes down to four things: did both parties enter into it freely, did each have independent legal advice, was there full financial disclosure, and does it still leave both parties – and any children – able to meet their reasonable needs.
There’s one factor that matters more for a pre-nup than a post-nup: timing. Sign it too close to the wedding, with the venue booked and family already arriving, and it’s much easier to argue you didn’t really feel free to walk away – which goes straight to the heart of the Radmacher test. Courts have repeatedly taken a dim view of agreements sprung on someone in the final days before the ceremony. There’s no fixed cut-off, but the advice is always the same: start the conversation weeks or months out, not days.
If time has already run out, it isn’t necessarily fatal. Signing a post-nuptial agreement shortly after the wedding, mirroring the same terms, can help close that gap and put the arrangement on firmer ground.
No solicitor can guarantee that a pre-nuptial agreement will be upheld in every circumstance. However, careful drafting, early timing, and compliance with these safeguards can significantly increase the likelihood of the agreement being respected by the court if it is ever relied upon.
Two things matter most in making an agreement stick: each party getting their own independent legal advice, and both giving full financial disclosure – assets, liabilities, income, pensions, the lot. Skip either and you’re handing the other side an argument to challenge it later.
We can advise on the level of disclosure required and help ensure the process is completed properly, reducing the risk of disputes further down the line.
Inheritance is one of the most common reasons people enter into pre nuptial agreements. You may already have received an inheritance, expect one in the future, or want to protect assets that have stayed within your family for generations.
A carefully drafted agreement can help clarify how those assets should be treated if the relationship later breaks down. Each case depends on its own facts, but getting advice early reduces uncertainty and the risk of disputes down the line.
Where one or both parties own a business, a pre nuptial agreement can provide important protection and certainty before the marriage even takes place. Business interests can become one of the most valuable – and hardest to divide – assets in a marriage.
A pre nuptial agreement can help clarify how business interests should be treated and protect the long-term stability of the business – particularly relevant if you’ve got co-founders or family members with a stake in it too.
Pre nuptial agreements are often given significant weight by the courts, but there are circumstances in which one party may seek to challenge the agreement following a separation or divorce.
Arguments can arise where it’s alleged that important financial information wasn’t disclosed, that one party didn’t properly understand the agreement, or that unfair pressure was applied – including pressure created simply by the timing, if it was signed too close to the wedding. A party may also argue the agreement no longer produces a fair outcome because circumstances have changed significantly since it was signed.
Get the preparation right at the outset, and signed in good time, and there’s far less for anyone to attack later.
Meet the Private Family Law Team
Sobiah Hussain
Partner, Solicitor-Advocate & Head of Private Family Law
Alison Page
Senior Associate Solicitor
Emma Macdonald
Chartered Legal Executive
Irrum Shah
Associate Solicitor Advocate
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