Reviewing or changing a nuptial agreement

Can i change or renegotiate my prenup?

Yes. You can amend your prenuptial agreement after marriage, and in many cases, it is advisable to do so - especially if your circumstances have significantly changed.

If you’re considering reviewing or changing your nuptial agreement, contact Vardags today for a free initial consultation with one of our specialist divorce solicitors.  

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When should I consider renegotiating my prenup?

If either party’s circumstances have changed significantly, then it may be desirable to update the terms of a prenuptial agreement - for example, if:

• You or your partner’s financial circumstances have changed
• You’ve had children or adopted
• There’s been a loss of employment, illness, or bankruptcy
• A review clause in the agreement has been triggered

What is a ‘review clause’?

Couples are able to include a ‘review clause’ in their nuptial agreement, detailing when they will revisit the nuptial agreement and carry out a review. The review may be triggered by a specific event, such as the birth or adoption of any children, or after a certain period of time.  If a couple chooses to include a review clause, they may also wish to include a sub-clause stipulating that the agreement will or will not be void if the review does not take place. 

Case law examples

An otherwise enforceable nuptial agreement may not be given effect if it provides for a review to be undertaken at a specified point and the review does not happen. For example, in AH v BH [2024] EWFC 125 the nuptial agreement stated that it would be reviewed upon the couple having children. This review did not occur, and the judge held that this provision indicated that the couple foresaw the agreement becoming unfair once they had children. This was one of the factors considered by the judge which justified a departure from the nuptial agreement.  

Alternatively, a nuptial agreement may not be given effect if it does not meet a party’s needs. If a party’s circumstances change, meaning that their current nuptial agreement may no longer meet their needs, it would be advisable to review the agreement. There are many different events or circumstances which may trigger this situation, including illness or disability, loss of employment, bankruptcy, or any other significant change in financial circumstances. 

Updating your prenup

To maximise the chances that a reviewed nuptial agreement will be given effect by the court, the same care should be taken when drafting and entering into a new agreement. As per the criteria for a valid nuptial agreement, the parties should ensure that it is:

• Formally drafted with the same care as the original
• Supported by independent legal advice for both parties
• Accompanied by a signed statement confirming that both parties:
  • Entered into the agreement freely
  • Understood its implications
  • Were not under duress or undue pressure

Informal changes to prenups

A more informal agreement to depart from or vary a nuptial agreement will be harder to rely on in court. It is important that a variation of a nuptial agreement is done with the same legal formalities as its initial draft.

For example, in Z v Z [2011] EWHC 2878 (Fam), the judge declined to rule on whether a nuptial agreement could be varied orally, such that it would be unfair to enforce it, but provided some insight into how oral variation may be demonstrated in theory. The burden of proving that the agreement was orally varied would rest on the person alleging it. Furthermore, there would have to be “the clearest possible evidence” to demonstrate that the parties had agreed to a variation. The judge highlighted that a different approach would otherwise encourage false testimony and render the need for formal variation ineffective.