Prenuptial and Postnuptial Agreements in England and Wales

Overview

A prenuptial agreement records financial arrangements before marriage. A postnuptial agreement is made during the marriage. Both can help couples discuss property, savings, businesses, inheritance and financial expectations.

Common concerns include protecting assets brought into the marriage, providing for children from a previous relationship and understanding what would happen if the relationship ended.

This guide explains how courts approach these agreements and how careful preparation can reduce uncertainty. Alstern Solicitors can assist with drafting, reviewing and negotiating terms that reflect the couple’s circumstances.

Key Legal Considerations

Are prenuptial and postnuptial agreements binding?

They are not automatically binding on the court. The Supreme Court stated:

“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.”

Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534 [75].

The court retains its financial-remedy powers and must consider the statutory factors. An agreement cannot contract those powers away. Matrimonial Causes Act 1973, ss 23–25.

What is the difference between a prenup and a postnup?

• Prenuptial agreement: Before marriage. Records intended treatment of assets and financial responsibilities
• Postnuptial agreement: During marriage. Introduces or updates arrangements after marriage or a significant change
• Separation agreement: On separation. Records arrangements following relationship breakdown, subject to the relevant legal framework

The court’s treatment depends on substance and circumstances, not simply the document’s title. Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534.

What makes careful preparation important?

Practical safeguards include:

• Financial information: sufficient information about assets, income, debts and relevant interests.
• Separate legal advice: helping each person understand the proposed terms and consequences.
• Time to consider: avoiding last-minute pressure linked to wedding arrangements.
• Voluntary agreement: addressing intimidation, exploitation or unequal bargaining circumstances.
• Clear drafting: identifying assets, intended arrangements and implementation issues.
• Review provisions: allowing reconsideration after children, illness, relocation or other significant changes.

These safeguards support the assessment of informed, voluntary agreement. They do not guarantee the court will uphold every term. Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534 [68]–[75].

Can an agreement protect inheritance or business assets?

It can record how the couple intends to treat those assets. However, the court still considers fairness, including needs. Labelling an asset “separate property” does not necessarily prevent it being relevant to a financial remedy decision. Matrimonial Causes Act 1973, s 25; Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534 [76]–[83].

What about children?

An agreement should not prejudice children’s reasonable requirements. It cannot conclusively determine future child arrangements or exclude the applicable child-maintenance framework. Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534 [77]; Children Act 1989, s 1; Child Support Act 1991, ss 1, 4 and 8.

Is mediation compulsory when preparing an agreement?

There is no general MIAM requirement merely to prepare a nuptial agreement. Negotiation or mediation may help, provided participation is safe and voluntary. Separate advice remains important.

A later financial remedy application may engage different pre-application requirements. Children and Families Act 2014, s 10; Family Procedure Rules 2010, rr 3.6–3.8.

What Factors Are Usually Considered?

The agreement’s significance commonly depends on:

• whether both parties entered into it freely;
• their understanding of its effect;
• the financial information available;
• legal advice and opportunities to ask questions;
• pressure surrounding signature;
• children’s needs;
• housing and income requirements;
• changes since the agreement was signed; and
• fairness when the court makes its decision.

The assessment is fact-specific. Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534 [68]–[83].

Common Mistakes or Risks

• Using a generic template: it may miss pensions, business structures, overseas property or implementation problems.
• Leaving discussions until the wedding is imminent: this can create pressure and weaken the agreement’s evidential foundation.
• Providing incomplete information: a party may not properly understand what they are agreeing to.
• Assuming separate advice guarantees the result: it is important, but fairness still matters.
• Failing to review the agreement: children, disability or career changes may make the original arrangements inappropriate.
• Treating the agreement as a consent order: it does not itself dismiss financial claims on divorce.
• Assuming recognition overseas: another jurisdiction may apply different validity or enforcement rules.

Case Study from Alstern Solicitors

Illustrative example only. This is not a report of an actual Alstern Solicitors client matter.

Background

An engaged couple wish to record how an existing business and inherited property would be treated. They also expect to have children.

Challenge

Their initial proposal protects existing assets but does not address housing or financial provision if one partner reduces work for childcare.

How We Assisted the Client

Appropriate assistance would include reviewing financial information, explaining the court’s approach, negotiating provisions for future needs and arranging separate advice for the other party.

Outcome

A possible outcome is a more balanced agreement with review provisions and clearer financial arrangements. Its eventual weight would still depend on the circumstances and fairness.

What Happens If You Choose the Wrong or Inexperienced Solicitor?

An inadequately prepared agreement may contain unclear terms, omit important assets or fail to address foreseeable needs.

Poor advice can also create false confidence about enforceability or allow avoidable pressure during negotiations. Cross-border assets may require coordinated advice in another jurisdiction.

How Can Alstern Solicitors Help?

Given the complexity and evolving nature of family law, choosing the right legal adviser is an important decision. Alstern Solicitors is proud to be a trusted law firm regulated by the Solicitors Regulation Authority (SRA) in England and Wales.

We are committed to the highest standards of professionalism, integrity and client care. We provide clear legal advice, transparent fees and practical solutions tailored to each client's circumstances.

Our clients benefit from:

• Strict confidentiality
• Full compliance with UK law
• Transparent fee structures
• Efficient case management
• Professional support throughout the process

We take the time to understand each client's situation and provide practical guidance designed to protect their interests and help them move forward with confidence.

Support may include drafting a new agreement, reviewing proposed terms, advising on an existing agreement and coordinating advice where overseas connections are involved.