Peter Hilton and Oliver Newbery, in our Family Law team, discuss nuptial agreements and why they are becoming more common amongst anticipated legal developments.
Since the Supreme Court ruling in Radmacher v Granatino [2010] UKSC 42 over 15 years ago, the law on nuptial agreements remains largely unchanged. My colleague, Rebecca Ledgerwood, asked about the need for these agreements in her blog article: Do I Need a Pre-Nuptial or Post-Nuptial Agreement? She set out what nuptial agreements are and how the court views them. The government is now going through a consultation on reforming financial remedies on divorce and strengthening protections for cohabitees at the end of a relationship. This is a rapidly developing area and an ongoing area of focus for the government to try and ensure fairer outcomes for couples. This article will provide a refresher on the principles and focus on why nuptial agreements are becoming more common in amongst all of these anticipated developments.
What are nuptial agreements?
There are two types of nuptial agreement: a pre-nuptial agreement and a post-nuptial agreement. A pre-nuptial agreement is an agreement entered into by the parties before marriage, whereas a post-nuptial agreement is an agreement entered into after marriage.
Nuptial agreements are used by parties to set out how they wish their assets, liabilities and income to be dealt with in the event of a divorce. In summary, nuptial agreements aim to limit and clarify the scope of claims between the parties arising from their marriage in the event of divorce.
How does the law treat nuptial agreements?
Nuptial agreements are not automatically binding in England and Wales, but the court should honour nuptial agreements that are ‘freely entered into by each party with a full appreciation of its implications unless in circumstances prevailing it would not be fair to hold the parties to their agreement'.
As explained in Rebecca’s blog article, the court is more likely to consider nuptial agreements that meet the following criteria:
- The agreement has been freely entered into by both parties.
- Both parties must have a full understanding of the implications of the agreement.
- Both parties have provided full and frank financial disclosure to one another.
- The agreement must be fair in the circumstances at the time of divorce. This means both parties’ reasonable needs must be met (which is specific to each couple), and particularly those with children. A nuptial agreement that says one party is to receive nothing in the event of a divorce is unlikely to be upheld by a court because this would not meet needs.
- Both parties have had independent legal advice as to the implications of the agreement.
There is also an expectation that a pre-nuptial agreement be entered into at least 28 days prior to the date of the marriage. This is indicative of neither party being placed under undue pressure or duress, and having had sufficient time to consider the terms. It is generally prudent to start looking to draft an agreement several months prior to the date of marriage to avoid falling foul of this deadline.
Why nuptial agreements deserve your attention?
In 2025, the Supreme Court case of Standish v Standish offered one of the most significant clarifications around the treatment of matrimonial assets (which generally fall to be shared equally), and what could lead to assets being treated as matrimonial.
The judgment confirms the relevance of the parties’ intentions when considering if assets are matrimonial or non-matrimonial. Nuptial agreements can be a valuable tool for evidencing those intentions.
Potential changes to nuptial agreements on the horizon
There continues to be significant consideration over whether ‘fair’ nuptial agreements should be binding. The Law Commission Consultation Paper No.343 of February 2014 suggests ‘qualifying nuptial agreements’ (QNP) should form a binding contract. A QNP would only be formed if it satisfied the following requirements:
- It must be a valid contract, noting that a contract made as a result of undue influence is voidable;
- It must be made by deed (this is a document in writing, that makes clear on its face that it is a deed and executed in accordance with the necessary formalities);
- It must contain a statement signed by both parties that they understand that the agreement is a qualifying nuptial agreement and that it will remove the court’s discretion to make financial provision orders, save in so far as the agreement leaves either party without provision for their financial needs;
- In relation to pre-nuptial agreements, a qualifying nuptial agreement should be made at least 28 days before the wedding or civil partnership;
- Both parties must have received, at the time of the making of the agreement, disclosure of material information about the other party’s financial situation and it is recommended that parties to a qualifying nuptial agreement should not be able to waive their rights to disclosure; and
- Both parties must have received independent legal advice at the time that the agreement was made.
A consultation is currently being conducted aiming to strengthen protection for cohabiting couples on separation. That consultation also proposes to introduce the QNA framework referenced above. The consultation document states:
'Reform should also give couples greater autonomy in planning their future financial arrangements. That is why this consultation proposes introducing Qualifying Nuptial Agreements, enabling couples to decide in advance how finances should be arranged in the event of divorce while ensuring important safeguards to ensure needs are met and to protect against coercion.'
The government is proposing to introduce new legislation to formalise existing case law provisions. Where there are areas of uncertainty due to case law not being settled the government will provide clarity on these issues (known as ‘codification-plus’), including the principles under Radmacher outlined above.
The consultation also explores a definition of ‘needs’ under a QNA, to offer a framework for what should be considered in assessing whether a party can meet their needs under the provision offered by a QNA. This definition will not be dissimilar to the protections already provided in divorce proceedings under section 25 of The Matrimonial Causes Act 1973 – covering earning capacity, financial resources of each individual, any physical or mental disability, age and length of relationship. However, the consultation suggests that the definition of ‘needs’ in relation to QNAs will be narrower than the considerations relevant on divorce/dissolution.
In summary the codification of pre-nuptial agreements through the proposed QNA framework will enable couples to make financial agreements in advance of divorce or dissolution.
Points to note
The consultation started on 5 June 2025 and will last until 14 August 2026. Please note that at this stage Qualifying Nuptial Agreements are a proposed framework which the government is considering adopting. At the time of writing the court takes a discretionary view as to whether nuptial agreements should be binding, and the weight attached to them in considering asset division.
If you wish to explore the options available to you for a nuptial agreement it is best to contact one of our specialist family solicitors as early as possible.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
