The criteria for a valid nuptial agreement: fairness vs autonomy

To determine whether a nuptial agreement should be enforced, the family court will carry out a careful balancing exercise between two key legal principles: fairness and autonomy. 

Autonomy: respecting personal choice

In the landmark case of Radmacher, which afforded decisive weight to nuptial agreements, respect for individual autonomy was emphasised by the judges as a crucial factor behind their reasoning: 

 “The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best.” 

Fairness: The Core Principle in Financial Remedies

Likewise, the concept of fairness was also highlighted as a crucial consideration in Radmacher. The court looked to the cases White v White and Miller v Miller, which established that the key criteria in financial remedy proceedings is ‘fairness’, which should be judged based on

• Need;
• Compensation; and
• Sharing.

To balance the preservation of fairness with respect for individual autonomy, the following direction has become a major cornerstone of the law relating to nuptial agreements: 

"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." 

From the caselaw, it is clear that when a nuptial agreement is departed from by the family court, it is most often on the basis of fairness. For example, in SC v TC [2022] EWFC 67 a post-nuptial agreement was not given effect as it failed to meet the husband’s needs, who was also found to have been subject to undue influence from the wife. The husband had been diagnosed with Parkinson’s disease and was in a vulnerable state, which the court found had been taken advantage of by the wife, following the revelation that the husband had visited a sex worker. The post-nuptial agreement set out to provide the wife with 80% of the couple’s assets, leaving the husband without sufficient resources to provide for his care.  

If you and your partner are planning to sign a nuptial agreement and you have concerns about its enforceability, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.  

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