Prenuptial Agreements UK: Essential Things You Need to Know

Explore the legal status of prenuptial agreements in the UK by reading this guide by our family lawyer, Georgina Hitchens. Are prenups just for wealthy people or are they a vital 'insurance policy'?

Georgina Hitchins BA (HONS)" />

Georgina Hitchins BA (HONS)" />

Written by: Georgina Hitchins BA (HONS) Solicitor

Georgina is a solicitor following a long period of study while working as a paralegal with the firm. She has a degree in English literature and cultural criticism and obtained a PGCE in middle English.

Last Updated: June 5th 2024

Table Of Contents

What is a Prenuptial Agreement UK?

A prenuptial agreement, often referred to as a prenup, is a legally binding contract entered into by a couple before marriage or a civil partnership.

A prenup agreement allows couples to predetermine and manage many of the legal rights and obligations they will acquire upon marriage. It specifies what happens to their assets in the event of a divorce or death.

Prenuptial agreements are particularly useful in superseding the default marital laws of England and Wales, which would otherwise govern the division of property, savings, and spousal support.

One alternative to a prenup is a ‘postnup’. A postnuptial agreement is similar to a prenuptial agreement but is entered into after the couple is married or in a civil partnership. They are useful if there have been significant changes in the couple’s financial circumstances or if they wish to reinforce the terms of an existing nuptial agreement.

Are UK Prenups Legally Binding?

Prenuptial agreements are legal in the UK in the sense that courts consider them within financial proceedings in a divorce. Despite years of campaigning, prenup agreements are still not automatically legally binding.

The landmark 2010 Supreme Court case of Radmacher vs Granatino significantly altered this legal landscape. The decision in this case marked a shift in both societal and judicial perspectives regarding the autonomy of married partners.

The Supreme Court ruled that prenuptial agreements can now be enforced, providing they meet specific criteria. For a prenuptial agreement to be upheld under the Radmacher ruling, it must satisfy a three-stage test:

1. Full financial disclosure: Both parties need to be open about their assets and debts. If one party hides financial information, the agreement could be deemed unfair, and the court might dismiss it.
2. Voluntary agreement: This is crucial. If one party feels pressured or rushed into signing the agreement, the court could invalidate it. That’s why we always recommend the prenup be signed at least 28 days before the wedding to avoid any appearance of last-minute pressure.
3. Legal advice: Legal advice for a prenup is a must. This helps demonstrate that both of you fully understood what you were signing. It’s not legally required, but the courts will take a much more favourable view of the agreement if both parties had proper legal counsel.

The courts retain the discretion to enforce prenuptial agreements as part of divorce settlements under Section 25 of the Matrimonial Causes Act 1973 . Judges will generally uphold a premarital agreement that meets the Radmacher test, provided it is fair in the given circumstances.

In 2014, the Law Commission released a report on Matrimonial Property, endorsing the Radmacher decision. The Commission recommended the creation of a ‘qualifying nuptial agreement’ regime, which would make prenuptial agreements fully binding if certain conditions are met.

How to Get a Prenuptial Agreement

To obtain a prenuptial agreement in the UK, you should follow these steps:

1. Early Consideration: Begin the process well before your wedding date. It is recommended that a prenup be signed at least 21-28 days before the marriage to avoid any suggestion of duress, which could affect its enforceability.
2. Full Financial Disclosure: Both parties must provide a complete and honest account of their financial situation. This includes disclosing all assets, debts, and income.
3. Independent Legal Advice: Each party should seek independent legal advice. This ensures that both individuals fully understand the agreement and its implications. The advice also helps to demonstrate that both parties entered into the agreement voluntarily.
4. Draft the Agreement: A solicitor can help draft the prenup, ensuring that it is tailored to your specific circumstances and it includes all necessary provisions. The agreement should be fair and consider any future changes in circumstances.
5. Review and Negotiation: Both parties should review the draft and if necessary, negotiate any terms. This might involve several rounds of discussion and revision to ensure the agreement is mutually acceptable.
6. Sign the Agreement: Once both parties are satisfied with the terms, the prenup should be signed. It is also advisable to have witnesses who are over the age of 18 and independent of the parties involved.

It’s also a good idea to review and possibly update the prenup periodically, especially after significant life events like the birth of children or major changes in finances.