Ever since the 2010 Supreme Court decision in Radmacher v Granatino prenuptial agreements have played a significant role in determining how assets are divided following divorce in England and Wales.
When signing this type of agreement it’s important that both parties remember the crucial point of the Radmacher judgment: courts will recognise prenups that are properly drafted and entered into by each party with full understanding, unless it would be unfair to do so in the circumstances.
So, while groundbreaking, the Radmacher case doesn’t make all prenups legally binding – the terms of a prenup will not always dictate how finances are divided on divorce. That’s to say there are circumstances in which courts will decide that the provisions of a prenup aren’t fair, don’t meet the needs of the parties, and therefore aren’t a valid way to reach a financial settlement. In interpreting prenups courts will consider the following:
- Has the agreement been entered into freely? Did one party exert pressure on the other to sign it?
- Was there full financial disclosure?
- Did both sides get independent legal advice?
- Did both sides understand fully the financial implications?
- Was it signed correctly and sufficiently in advance of the wedding to override any suggestion of duress?
- In the circumstances, is it fair to hold the parties to the agreement? Does it in any way jeopardise the future financial position of either party?
We look at some of these considerations below and discuss the wide-ranging proposals for reform of the law on prenups by the Law Commission.
Did one party sign the prenup under duress?
It’s fundamental to any contractual arrangement that the parties agree freely to the terms. When one party feels cornered into accepting the terms of a prenup he or she may argue that it is invalid.
Duress might occur when, for example one party refuses to marry until the agreement is signed. Courts will often insist that a prenup – to be valid – should be executed well in advance of a marriage ceremony (a period of 21 days is usually deemed sufficient to remove any suggestion of duress).
Other factors that can undermine the validity of a prenup include misrepresentation, undue influence or mistake as to the terms of the agreement. In general where there is a question mark over a party’s free will or the information relied on before entering the agreement the validity of a prenup could feasibly be challenged.
Were the financial implications of the prenup fully understood?
Unless there is complete transparency about each parties’ assets a prenup will be open to challenge. It’s always advisable for both sides to obtain independent legal advice so that an understanding of the legal and financial implications of the agreement be firmly established. In Helliwell and Entwistle (2025) for example, the court set aside a prenuptial agreement when it transpired the wife had significantly underdeclared her wealth in negotiations leading up to the signing of the agreement.
Is it fair to follow the terms of the prenup?
A prenuptial agreement can never subvert existing legislation. If a prenup is disputed, judges can still consider all relevant circumstances of the case when deciding on a financial settlement (Matrimonial Causes Act, 1973). In looking at whether a prenup results in a settlement that is fair to the parties the courts will consider several factors, including:
- The income, earning capacity, property and other financial resources each party to the marriage has or is likely to have in the future
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- The conduct of each of the parties if that conduct us such that it would, in the opinion of the Court, be unfair to disregard it
A prenup that prevented a spouse applying for financial relief through the courts and asking for the above factors to be applied would be invalid.
Case study S v H
All these issues were considered in the case of S v H (2020). There, a prenup was signed without any independent legal advice just five days ahead of the marriage. When the marriage ended, the husband – who was bankrupt – asked the courts to implement the terms of the agreement. The wife sought to activate the terms of the prenup as part of her financial relief claim. In the circumstances the judge ruled that the prenup was invalid because:
- There was no legal advice,
- The parties had not disclosed one another’s assets to each other
- The agreement didn’t meet the needs of the husband
As a result the court ordered the wife to pay £675,000 to the husband and provide accommodation for his lifetime. The husband also received 60% of the wife’s pension.
Will the law on prenups change?
The Marriage Foundation has reported that one in five marriages start with a prenup, and there does appear to be a groundswell of opinion advocating for law reform.
As far back as 2014 the Law Commission suggested that a new form of marital property agreement in England and Wales, known as “qualifying nuptial agreements”, should be introduced. This already exists in many other jurisdictions, notably across Europe. It would, proponents argue, provide a reliable way for couples to decide ahead of time how their property will be divided without their positions being scrutinised by a court. However the Commission was careful to stress that prenups should never prohibit parties from applying for financial orders to address financial needs or attempt to undermine the courts’ inherent jurisdiction to make financial remedy orders.
Comment
Ordinarily a judge will attach considerable weight to a prenuptial agreement provided the conditions we’ve described have been met. Independent legal advice and full disclosure of assets is always essential for a prenup to be valid. In addition, as the case of S v H demonstrates, a prenup can’t stop a spouse in dire financial straits applying to the courts for financial relief, irrespective of the terms of the agreement.
From a practical point of view, many of the 2014 recommendations of the Commission are already applied by judges on a case by case basis. For example, making it a requirement that the agreement must not be made within 28 days before the wedding, obliging both parties to make full disclosure of their finances and ensuring each side gets independent advice.
However the fact that agreements continue to be argued over in court, with all the expense and uncertainty this entails is one reason many are urging government to put prenups on a statutory footing. The lack of legislation means couples who enter prenups with their eyes open to the implications are still unsure of how it will be viewed by a court if it is ever disputed. The Law Commission’s recommendations in 2024 to tackle wholesale the way financial division is approached in divorce could also strengthen the case for prenups to be protected by legislation. Finally, it’s’ worth noting that public opinion appears squarely in favour of greater legal protection for prenups. A YouGov report commissioned by one leading law firm in 2025 showed that 60% of respondents agreed prenups should automatically be complied with if a couple with a signed agreement get divorced.