A Prenuptial Agreement (commonly known as a prenup) is a legally significant document entered into by two people who intend to marry, setting out how their assets, property, debts, and financial affairs will be dealt with in the event that the marriage breaks down. In England and Wales, a prenuptial agreement is governed by the common law principles established by the Supreme Court of the United Kingdom in the landmark case of Radmacher v Granatino [2010] UKSC 42, which fundamentally changed the legal landscape for nuptial agreements in this jurisdiction.

Prior to Radmacher, prenuptial agreements were generally considered contrary to public policy in England and Wales because they were seen as contemplating the failure of a marriage. The Matrimonial Causes Act 1973, which remains the primary statute governing financial provision on divorce, does not contain any express provisions dealing with prenuptial agreements. However, in Radmacher, the Supreme Court held by a majority of 8-1 that 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.

This decision established that a prenuptial agreement is not a contract in the traditional sense under English law — it cannot oust the jurisdiction of the court under Part II of the Matrimonial Causes Act 1973 — but it is a highly relevant factor that the court will take into account when exercising its discretion to make financial orders on divorce. Where the three conditions identified in Radmacher are satisfied (freely entered into, full appreciation of implications, and not unfair in prevailing circumstances), the court may give the agreement decisive weight.

The Law Commission of England and Wales published a report in 2014 (Law Com No 343) recommending the introduction of qualifying nuptial agreements that would be automatically enforceable by statute, provided certain safeguards were met. Although this recommendation has not yet been enacted into legislation, the principles continue to guide judicial practice, and prenuptial agreements properly drafted under the Radmacher principles carry substantial persuasive weight in the Family Division and the Court of Appeal.

A UK prenuptial agreement typically addresses the protection of pre-marital assets, the division of jointly acquired property during the marriage, spousal maintenance (periodical payments), pension entitlements under the Welfare Reform and Pensions Act 1999, business interests, inheritance and gifts received during the marriage, and financial provision for any children. Full and frank financial disclosure by both parties is essential — non-disclosure is one of the primary grounds on which a court may refuse to give weight to an agreement.

A prenuptial agreement is appropriate whenever one or both parties to an intended marriage wish to establish clear financial arrangements in advance of the marriage. While once considered the preserve of the very wealthy, prenuptial agreements are now increasingly common across all income levels in England and Wales, reflecting growing awareness of the protection they offer and the costs and uncertainty of contested financial proceedings on divorce.

The most common circumstances in which a prenuptial agreement is advisable include situations where one party has significantly greater wealth than the other — whether in the form of property, savings, investments, or business interests — and wishes to protect those pre-marital assets from claims on divorce. This was precisely the factual scenario in Radmacher v Granatino, where Katrin Radmacher, a German heiress with family wealth of approximately 100 million pounds, entered into a prenuptial agreement with her husband Nicolas Granatino before their marriage.

A prenuptial agreement is also strongly recommended where one or both parties own a business or hold shares in a company, as the division of business assets on divorce can be highly complex and disruptive. The agreement can specify that the business remains the sole property of the owning party, avoiding forced sales or share valuations that could damage the business.

Parties who are entering a second or subsequent marriage often use prenuptial agreements to protect assets earmarked for children from a previous relationship. Similarly, where a party has received or expects to receive a significant inheritance, a prenuptial agreement can ring-fence those inherited assets.

Where one party is relocating to England and Wales from another jurisdiction to marry, a prenuptial agreement provides certainty about which country's laws will govern the financial consequences of any future divorce. This is particularly important given that the financial remedies available under the Matrimonial Causes Act 1973 are among the most generous in the world for the financially weaker party.

A prenuptial agreement is also advisable where the parties have different financial expectations or where there is a significant age difference that may affect earning capacity over the course of the marriage. In all cases, the agreement should be entered into well in advance of the wedding — at least 28 days before, and ideally 2 to 3 months before — to avoid any suggestion that either party was put under pressure to sign.

A well-drafted prenuptial agreement for England and Wales must satisfy several requirements to maximise its enforceability under the principles established in Radmacher v Granatino [2010] UKSC 42 and to withstand scrutiny by the Family Division of the High Court.

The first and most critical requirement is full and frank financial disclosure. Both parties must disclose all of their assets, liabilities, income, and financial resources. Non-disclosure is one of the primary grounds on which a court will refuse to uphold a prenuptial agreement, because a party cannot be said to have freely entered into an agreement with a full appreciation of its implications if they were not aware of the other party's true financial position. The financial disclosure should be detailed and supported by documentary evidence where possible.

The second requirement is independent legal advice. Each party should receive advice from a separate, independent solicitor who specialises in family law. The solicitor should explain the terms of the agreement, the rights the party may be giving up, the current state of the law, and the potential outcomes on divorce with and without the agreement. Each solicitor should provide a signed certificate confirming that independent legal advice was given.

The third requirement is timing. The agreement should be signed at least 28 days before the wedding to avoid any argument that a party was put under pressure or duress in the run-up to the ceremony. Ideally, negotiations should begin several months before the wedding to allow both parties adequate time to consider the terms and take legal advice.

The substantive terms of the agreement should address the following key areas. Pre-marital assets: a clear schedule of each party's assets, property, and financial resources as at the date of the agreement, with confirmation that these shall remain the sole property of the owning party. Jointly acquired assets: provisions for how property and assets acquired during the marriage will be divided on separation, whether equally or in proportion to contributions. The matrimonial home: specific provisions for the treatment of the property intended to be the family home, including ownership, mortgage responsibility, and rights of occupation. Spousal maintenance: whether a clean break is intended under section 25A of the Matrimonial Causes Act 1973, or whether periodical payments will be available and on what terms. Pension sharing: the treatment of pension entitlements under the Welfare Reform and Pensions Act 1999. Business interests: protection for businesses owned before or started during the marriage. Inheritance and gifts: ring-fencing of inherited assets and third-party gifts. Financial provision for children: while the agreement cannot predetermine custody or living arrangements (which are governed by the paramountcy principle under section 1(1) of the Children Act 1989), it can address financial support such as school fees and maintenance. A review clause requiring periodic reassessment of the agreement is strongly recommended to ensure it remains fair as circumstances change. A sunset clause may also be included to provide that the agreement expires after a specified period.