Pre and Post Nuptial Agreements: Planning Ahead with Clarity

In England and Wales, courts have wide discretion to divide assets on divorce or dissolution. Judges aim for fairness, but their idea of fairness may not reflect what a couple sees as fair.

This can cause problems in situations such as:

• Couples where one party brings significant wealth into the marriage.
• Where there are family businesses, farms, or trust funds.
• Where large debts are held by one spouse.
• Where marriage happens later in life, with wealth already established.
• Second marriages, where one spouse wants to preserve assets for children from a first marriage.

A nuptial agreement allows couples to make their own arrangements, rather than leaving everything to the court.

Strictly speaking, nuptial agreements are not automatically binding in England and Wales. However, since the 2010 case of Radmacher v Granatino, the courts have been much more willing to give weight to them.

If the agreement is properly prepared, fair, and meets certain conditions, it is likely to be upheld by the court. While not a guarantee, having an agreement vastly increases the chance of protecting assets.

The courts have set out clear requirements for nuptial agreements to carry weight:

• Both parties must give full financial disclosure.
• The agreement must be entered into freely, without pressure.
• Terms must be clear, certain, and fair.
• The agreement must be signed in good time, ideally at least 28 days before the wedding.
• Ideally, both parties should take independent legal advice, but what matters most is that each fully understands the nature and effect of the agreement they have entered into. 

Above all, the agreement must deal fairly with both parties’ financial needs. Courts will not enforce an agreement that leaves one party without reasonable provision.

No agreement can predict the future perfectly. Circumstances change, children may be born, jobs may be lost, inheritances may be received, or the value of assets may shift significantly.

For that reason, we usually recommend:

• Reviewing agreements every five years.
• Reviewing after major life changes (birth of a child, illness, inheritance).

Agreements that are out of date are less likely to be upheld.

For many couples, yes. While nuptial agreements are not guarantees, they provide:

• A clear record of what each party brought into the marriage.
• A way to protect family assets such as farms, businesses, or trusts.
• A practical framework that can save time, money, and stress if the relationship ends.
• Evidence to support arguments in court that certain assets should not be divided equally.

Even where courts depart from the agreement, having a nuptial agreement strongly influence the outcome and reduce disputes.