As the name suggests a prenup agreement is one that’s made ahead of your marriage. If, after you get married you want to change the agreement you can do so – by making a new type of agreement, called a ‘postnup’.

Taken together these agreements are known as ‘nuptial agreements’. The English courts have confirmed – in one of the most important cases in this area of law Radmacher v Granatino – that there is essentially no difference in the way the law approaches pre and post nuptial agreements. At Brookman Solicitors we regularly advise clients on the legalities around nuptial agreements, preparing bespoke agreements when asked to do so.

How Do I Make A Nuptial Agreement?

If a nuptial agreement is to stand up to legal scrutiny in the future it should:

  • Only be drawn up following full and frank disclosure of property, assets and income. Usually a detailed schedule of assets will be attached to the agreement
  • Be signed after both parties have received independent legal advice
  • Be fair to both sides
  • Not be used as a vehicle to circumvent the general law or legal obligations. For example, a spouse cannot seek to avoid the obligation to pay child maintenance in the future through a nuptial agreement

In addition there should be no suggestion that one spouse was unduly pressurised or forced into signing the agreement.

Finally, a well-drafted nuptial agreement will also include a provision for regular reassessment of the agreement.

Can I Challenge A Nuptial Agreement?

There are several ways nuptial agreements can be challenged. These include:

  • Lack of legal advice – If each side does not get separate legal advice about the nuptial agreement it will be more difficult to enforce the agreement in future. However, lack of advice does not automatically invalidate an agreement, and several cases since Radmacher have approved agreements even where there wasn’t legal advice on both sides. That said, we would always advise each side to get legal advice. The requirement is that you should appreciate fully the implications of the agreement before signing it. We would suggest that the best way of demonstrating this is to get legal advice
  • Failure to disclose all assets –Transparency on financial matters is seen as a prerequisite for valid nuptial agreements. If there is not full disclosure by both sides it may be difficult to argue that both sides fully appreciated the nature of the agreement
  • Duress or undue pressure –Two cases from 2023 show that since Radmacher the courts have become a little more demanding when testing what amounts to duress or undue pressure. In MN v AN [2023] the wife argued the prenup was unenforceable because:
    • The husband had stated he would not get married unless it was signed
    • He referred to her as a ‘gold digger’
    • She would face ‘unbearable social stigma’ if the wedding did not take place

      In spite of this the courts found the wife had not been unduly pressurised into signing the agreement. The judge’s view was strengthened in part because both sides had sought and obtained extensive, top quality legal advice on the agreement.

In HD v WB which we have written on before, the fact that the agreement was only signed on the  day of the wedding – sometimes a clear indication of undue pressure –  did not in the circumstances of the case invalidate the agreement.

  • Arguing that the agreement fails to meet the applicant’s needs – is the agreement fair? This involves looking at the factors listed in S25 of the Matrimonial Causes Act such as earning capacity, financial needs and the length of the relationship

In conclusion, pre and post nuptial agreements are widely used and accepted by the courts, and it’s not straightforward to get a court to overturn a nuptial agreement. Legal advice is important therefore to ensure you understand the agreement before committing to its terms.

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