The criteria for a valid nuptial agreement

Radmacher v Granatino remains the leading authority on nuptial agreements in England and Wales. This landmark Supreme Court decision established the key principles that guide courts when determining whether a nuptial agreement - commonly referred to as a prenup or postnup - should be upheld. From this judgment, the following key principles can be drawn: 

• Whilst the court will be aware of the risk of exploitation, it must assume that a “party to a properly negotiated agreement is a grown up and able to look after him or herself”. 

• It is desirable for the parties to have received independent legal advice, but it is not necessary if the parties were fully aware of the implications of the agreement and had all the information material to their decision. 

• The parties should intend for the agreement to govern the financial consequences of their marriage ending. 

• The standard vitiating factors (duress, fraud, and misrepresentation) will negate the effect of an agreement. Other conduct such as undue pressure, or exploitation of a dominant position, will reduce or eliminate the weight afforded to the agreement. 

• The court will consider the parties’ emotional state, the pressure they were under to agree, and other factors such as the parties’ age, maturity, and whether they have been married previously. 

• The court should give effect to a nuptial agreement which was freely entered into by the parties with a full appreciation of its implications unless it would be unfair to hold the parties to it. 

• The court should give weight to nuptial agreements out of respect for individual autonomy, particularly where an agreement addresses existing circumstances rather than future uncertainties. 

• It will likely be unfair to hold parties to an agreement which leaves one party “in a predicament of real need” or which entitles one party to retain all the wealth they accumulated with the other party’s support. 

Should Your Nuptial Agreement Be Upheld?

The court will weigh all these factors to determine whether your nuptial agreement should be given legal effect. If you’re unsure about the validity or enforceability of your agreement, expert legal advice is essential.

If you are concerned about the validity of your nuptial agreement, contact Vardags today for a free initial consultation with one of our specialist divorce solicitors.  

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