Are prenuptial agreements legally enforceable?

Prenuptial agreements are generally much more prevalent in the US than in the UK, however they are on the rise in the UK. A 2021 report from the Marriage Foundation found that one in five couples who have got married in the UK since 2000 have had some form of prenuptial agreement drawn up. This is more than double the statistics in the 1990s.

UK and US law differs greatly, however, in their courts’ approaches to prenuptial agreements. While different states may deal with prenuptial agreements in different ways, they often are instantly legally enforceable. However, in England and Wales, the approach is different.

The law in England and Wales relating to nuptial agreements has developed following the Supreme Court decision in Radmacher v Granatino in October 2010. When considering the role of a post-nuptial agreement in a financial claim on divorce, the starting point is the current relevant legislation, which is the Matrimonial Causes Act 1973. Section 25 of this Act obliges a judge to consider all the relevant circumstances of the case when deciding how to divide the parties’ finances on a divorce, which includes any nuptial agreements. No agreement between the parties can override the legislation or prevent a judge from deciding on the appropriate division of assets on a divorce which means that a prenuptial agreement cannot stop a spouse applying to the court for financial provision from the other spouse.

Guidance on nuptial agreements

In response to the Radmacher case, the Law Commission published a report in 2014 on nuptial agreements, in which they recommended reforms to current UK legislation. These amendments have not yet been implemented by the UK Government, however the House of Commons library has recently published a research briefing on this topic. Despite the reforms not yet having been made, lawyers and Family Courts in England and Wales do tend to follow the guidelines set out when considering the weight that should be applied to a prenuptial agreement in a financial remedies case arising out of a divorce.

These guidelines are that a ‘qualifying’ nuptial agreement must meet the following criteria:

• It must be contractually valid. This means there must be no factors present that cast doubt on the free will of either party to the agreement or on the level of information a party had when entering the contract. Any evidence of mistake, misrepresentation, duress or undue influence may cause the agreement to fail.
• It must be validly executed as a deed and contain a “relevant statement” signed by both parties confirming that they understand the agreement is a qualifying nuptial agreement that will remove the court’s discretion to make financial orders on divorce except to meet financial.
• Both parties to the agreement must have received disclosure of material information about the other party’s financial situation when they entered into the agreement.
• Both parties must have received legal advice at the time they entered into the agreement.
• It must not prejudice any children. If the agreement makes insufficient financial provision for children it will be set aside by the court.
• Both parties’ needs must be met. ‘Needs’ are measured with reference to the standard of living during the marriage. Therefore, an agreement that results in a party receiving nothing or very little would not be upheld by the court.

Complying with these requirements will mean that a prenuptial agreement has the best chance of being followed by a judge if the matter is referred to Court. Furthermore, it is likely that at some point in the future the UK Government will pass legislation amending the current law to reflect the Law Commission’s proposed changes, and so prenuptial agreements that follow the above requirements will be legally binding in the future.

Prenuptial agreements help to provide couples who are getting married with as much clarity and certainty as possible regarding the division of their finances if their marriage should break down in the future. They also save both parties the stress, time and legal costs of contested financial proceedings.

We have a team of experienced matrimonial lawyers who can guide you if you think any of the issues raised in this article might apply to you. We can go through all the options available to you and help you decide your best course of action. Contact our experts to see what we can do for you.