Are Nuptial Agreements Binding in Divorce?

Are Nuptial Agreements Legally Binding in the UK?

In England and Wales, nuptial agreements - including prenuptial and postnuptial agreements - are not automatically legally binding. However, courts will generally uphold them if certain conditions are met, particularly if the agreement is fair and both parties entered into it freely and with full understanding.

Previously, nuptial agreements were seen as unenforceable in the UK. But, following Vardags’ victory in the landmark Supreme Court case Radmacher v Granatino, nuptial agreements have held a new and important status in matrimonial law where the UK Supreme Court ruled that “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.” 

What Makes a Nuptial Agreement Enforceable?

For a nuptial agreement to carry weight in court, it must meet the following criteria:

• Freely entered into by both parties
• Full financial disclosure provided
• Independent legal advice obtained by both parties
• No duress, undue pressure, or misrepresentation
• The agreement must be fair at the time of enforcement

Including a review clause - especially after major life events like childbirth - can strengthen the agreement’s credibility.

When Might a Court Depart from a Nuptial Agreement?

Nuptial agreements will only be upheld by the court if they meet the qualifying criteria set by the Supreme Court and further reviewed by the Law Commission. These are: 

• That the nuptial agreement must be contractually valid (offer, acceptance and consideration); 

• Neither party should have been under any undue influence or pressure to sign the agreement; 

• That it must be made by a written deed, and contain a statement confirming that both parties understand that the agreement may restrict the court’s ability to make a financial order; 

• Both parties must have received disclosure of the other’s financial information; and 

• Both parties must have received independent legal advice as to the content of the prenup and its implications. 

• If there is a review clause and that review did not take place, it increases the chances of there being a departure from the terms set out in the agreement. 

Additionally, both parties’ needs must be met. Needs are one of the guiding principles of the courts and are measured with reference to the standard of living during the marriage. Consequently, an agreement resulting in a party receiving near to nothing will not be upheld by the court. 

Example:
In AH v BH [2024] EWFC 125, the court departed from a prenup to meet the wife’s housing needs as the primary caregiver of two children.

Prenups vs Postnups: Are They Treated Differently?

No - both are treated similarly under UK law. The key factors are fairness, freedom of choice, and procedural safeguards, regardless of when the agreement was signed.

conclusion

As the law currently stands, the Court will usually give effect to a nuptial agreement that is freely entered into by both parties with a full appreciation of its implications unless it would be unfair to hold the parties to their agreement in the prevailing circumstances – for example leaving one party unable to meet reasonable housing or living costs. 

Therefore, if you are planning on entering into a nuptial agreement, it is important that you seek expert legal advice to ensure that the family courts will uphold it in the event of a divorce. 

To learn more on nuptial agreements, read our guide pages on ‘Drafting a nuptial agreement in the UK’, ‘Enforcing a nuptial agreement’, ‘The crtieria for a valid nuptial agreement’, ‘The vitiating factors which undermine a nuptial agreement’, and ‘Reviewing or changing a nuptial agreement’.

Need Expert Help?

Vardags offers unparalleled expertise in prenuptial agreements for high-net-worth individuals. Following our landmark success in Radmacher v Granatino, we have set the standard for drafting and enforcing agreements that safeguard substantial assets and complex financial interests, both domestically and internationally. To discuss how we can protect your wealth with a bespoke prenuptial agreement, contact our expert team today. 

Alternatively, if you’re concerned about how a nuptial agreement may affect your divorce settlement, especially where children or financial disparity are involved, our expert solicitors can help.

We offer a free initial consultation to qualifying individuals.

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FAQs

Q: Are nuptial agreements legally binding in the UK?

A: Not automatically, but they are given decisive weight if fair and properly entered into.

Q: Can a nuptial agreement protect my business or inheritance?

A: Yes, if drafted correctly and upheld by the court, a prenup can ringfence non-matrimonial assets.

Q: Can I challenge a nuptial agreement?

A: Yes, especially if you didn’t receive legal advice, were pressured, or your needs aren’t met.

Q: How does the court decide whether a nuptial agreement is fair?

A: The court will consider the fairness of upholding any nuptial agreement on a case-by-case basis, considering several factors including those set out in section 25 of the Matrimonial Causes Act 1973.