Abbie Tottle, Trainee Solicitor in JMW’s Family team, examines whether a pre-nuptial agreement can become legally binding in England and Wales, and the key steps couples should take to give their agreement the best possible chance of being upheld by the court.

Pre-nuptial agreements are not automatically legally binding in England and Wales, but they can carry significant weight if a marriage later breaks down. Since the Supreme Court decision in Radmacher v Granatino (2010), the courts are more likely to uphold a pre-nup where both people entered into it freely, understood what they were agreeing to, and appreciated that the outcome of the pre-nup would be fair.

Once seen as something mainly for high-net-worth couples, pre-nups are now increasingly used by people who want clarity, certainty and financial protection before they marry.

The key question is not simply whether a pre-nup is “binding”, but whether it has been prepared in a way that gives the court good reason to follow it. If you are considering a pre-nuptial agreement, there are several important steps you can take to strengthen its position.

Seeking independent legal advice

Each person should take independent legal advice while the terms of the pre-nup are being negotiated and before any agreement is signed. This is important because it helps show that both people understood what they were agreeing to, including the legal effect of the agreement and the financial claims they may otherwise have been able to make if the marriage broke down. It can also reduce the risk of one person later arguing that they did not understand the agreement or felt pressured into signing it.

Full and frank financial disclosure

A pre-nup should be supported by full and frank financial disclosure. Both parties should exchange details of their assets, liabilities, income and any significant financial interests before the pre-nup is signed. This ensures that both parties had a full appreciation of the circumstances before signing the agreement.

When should a pre-nuptial agreement be signed?

One of the most important practical considerations is timing. Ideally, the pre-nup should be signed at least 28 days before the wedding. Leaving the agreement until the last minute may give rise to arguments that one party felt pressured into signing because the wedding arrangements had already been made, or because the wedding ceremony was imminent. The earlier discussions begin, the better.

Why fairness matters when the court considers a pre-nuptial agreement

The court retains the ultimate discretion to decide whether parties should be held to the terms of a pre-nuptial agreement upon divorce. Any pre-nup that leaves one party in serious financial hardship or fails to meet the reasonable needs of either spouse or any children of the family, is unlikely to be upheld. A well-drafted pre-nup should seek to balance the wishes of both parties whilst remaining fair in the circumstances.

When should a pre-nuptial agreement be reviewed?

Life rarely stands still after marriage. Children, property purchases, inheritances and changes in income can all significantly alter a couple’s financial circumstances. It is sensible to review a pre-nup periodically, and to include a review clause within the agreement. In some cases, entering into a post-nuptial agreement after marriage can reaffirm the parties’ original intentions and strengthen the overall position.

Are pre-nuptial agreements worth having if they are not legally binding?

Even though pre-nups are not automatically legally binding in England and Wales, they can still be extremely valuable. They encourage couples to have open and honest conversations about money before marriage, help identify and protect assets, and provide a clear record of what each person intended at the time. This can give both parties greater certainty and reassurance and may reduce the scope for dispute if the marriage later breaks down. While a pre-nup cannot override the court’s discretion, a carefully considered and well-drafted agreement can carry significant weight and may be highly persuasive when the court decides what outcome is fair.

If you are considering a pre-nuptial agreement, early specialist advice can make a significant difference. JMW’s experienced family law team regularly advises clients on the preparation, negotiation and review of pre-nups, helping to ensure that the agreement is carefully drafted, reflects your intentions and is as robust as possible if it is ever considered by the court. Contact us to speak to a member of our specialist family law team about how we can help.