Are nuptial agreements binding?

Since Vardags won the landmark Supreme Court case, Radmacher v Granatino, prenuptial agreements have held a new and important status in matrimonial law, and it is likely you will be bound by it if you divorce if certain conditions have been met. 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.” 

Criteria to disregard a nuptial agreement 

That said, nuptial agreements are not automatically binding and 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. Therefore there should a review clause and the party that would want the agreement upheld should remember to have that review take place. 

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. 

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

• The welfare of any minor children of the relationship 

• The capital and income resources available to the parties 

• The financial needs of each party 

• The age of the parties and the duration of the marriage 

• The standard of living enjoyed by the parties 

• Physical and mental disabilities of the parties (S.25(2)(e)) 

• Conduct 

• Each party’s financial and non-financial contributions to the marriage 

• In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. 

As a result, 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. 

Vardags’ team of top divorce lawyers delivers a bespoke legal service to HNW and UHNW individuals, their families, and businesses. 

If you’re considering or going through a divorce and there is a nuptial agreement involved, we can help. Click below for a free initial consultation with one of our expert divorce solicitors. 

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