Relationship breakdown is rarely tidy. Even where two people want to be reasonable, financial issues can quickly become the hardest part to resolve.
Who brought what into the relationship, what did family members contribute, what happens if one person takes time out of work, or did the couple move into a home owned by one party before the marriage, are all questions which may arise.
For most couples, these are private issues. But the underlying concern is the same – uncertainty about money can turn a difficult time into a prolonged dispute.
A prenuptial agreement (often shortened to “prenup”) is one way to reduce that uncertainty. Despite some common assumptions, a prenup is not about predicting divorce. It is about agreeing, while the relationship is still cordial and intact, how assets and income should be treated if the relationship later ends.
What is a prenup?
A prenup is a written agreement entered into before marriage (or civil partnership) setting out the parties’ intentions as to how finances will be dealt with if the relationship ends. A postnuptial agreement is the same concept, but entered into after the marriage or civil partnership.
In England and Wales, prenups are not automatically legally binding in the way a commercial contract is. The court retains discretion when making financial orders. That said, a properly prepared nuptial agreement can carry substantial weight, particularly following the Supreme Court’s decision in Radmacher v Granatino.
The key point is this: the court will usually give effect to a nuptial agreement that both parties entered into freely, with a full understanding of its implications, unless it would be unfair to do so in the circumstances at the time of separation.
What a prenup is not
A prenup is not a complete rulebook for the relationship. In particular:
- It does not remove the court’s discretion on divorce or dissolution. The court must apply the statutory framework, including the section 25 factors (or the civil partnership equivalent).
- It cannot be used to sidestep fairness or needs.
- It is not the right tool to manage wider family dynamics or disagreements with relatives.
- It cannot determine child arrangements. Any arrangements for children will be decided by reference to the child’s welfare.
- It cannot usually fix child maintenance. Child maintenance is generally dealt with through the statutory scheme, and a child’s needs will always take priority.
A well-drafted agreement is realistic. It aims to narrow the areas of dispute, not to pretend the court has no role.
When prenups help ordinary couples
Prenups are not only for the ultra-wealthy. They are often used where there is a clear reason to protect something pre-existing, or where the parties want to record intentions while the relationship is amicable.
Protecting a property one person already owns
If one party owns a flat or house before the marriage, the agreement can record the intention that it should remain that party’s non-matrimonial asset so far as fairness allows. It can also deal with predictable changes, such as:
- the property becoming the family home
- contributions by the other party to mortgage payments
- renovations and capital improvements
- whether, and how, those contributions should be reflected if the relationship ends
Without this, couples often end up debating years later what was “meant” at the time, with very little paperwork to support either position.
Recording parents’ contributions
Where parents contribute towards a deposit, everyone may be clear at the time whether that money is a gift, a loan, or something in between. A few years later, that clarity can fade. A prenup can help record:
- the nature of the contribution (gift or loan)
- whether it is intended to remain within the family if the relationship ends
- whether there should be any repayment mechanism, and on what trigger
Ring-fencing a business interest
If one party has shares in a company, a partnership interest, or a business that is growing, a prenup can reduce the scope for later disputes about valuation and liquidity. It can also deal with a common practical point – whether a sale is expected to fund settlement, or whether alternative provision is intended.
Protecting expected inheritance
Many couples want it recorded that an inheritance is intended to remain separate. A prenup can say so, while recognising that needs may justify a different approach in some circumstances, particularly housing needs.
Second marriages and blended families
Prenups are especially common where one or both parties have children from a prior relationship and want to protect assets intended for them, while still making reasonable provision for the new spouse.
What makes a prenup more robust
A strong prenup is as much about process as it is about drafting. If the process is weak, the agreement becomes easier to challenge.
- Full and frank disclosure
If one party did not understand the other’s financial position, the agreement is far more vulnerable. A sensible approach is a clear schedule of:
- assets (property, savings, investments, pensions, business interests)
- liabilities (mortgages, loans, credit)
- income and likely changes (for example, a planned career break or reduced hours)
- any known family support or expected inheritances, where relevant
If you want a practical illustration of how disclosure can become pivotal, see our recent discussion of Helliwell v Entwistle and the risks of non-disclosure.
- Independent legal advice
Each party should have their own solicitor. Independent advice supports informed decision-making and reduces later arguments about misunderstanding, imbalance, or pressure.
- Sensible timing and no last-minute pressure
There is no single deadline that automatically makes an agreement safe or unsafe. However, leaving matters until the final days before a wedding is a known risk factor. Proper time matters because it helps show the parties had a genuine choice, understood the implications, and were able to take advice without urgency.
- Terms that remain fair in context
A prenup is not strengthened by being harsh. Overreaching terms can increase the risk of a court departing from the agreement later. A well-judged agreement usually anticipates predictable changes, for example:
- what happens if children are born
- what happens if one party stops work or reduces hours
- how housing needs will be met if the relationship ends
- whether any spousal maintenance is contemplated, and on what basis
Some couples also include a review clause, for example on the birth of a child, after a set number of years, or on a major change in circumstances.
- Consent is genuine, not coerced
The court will scrutinise the circumstances in which an agreement was signed, particularly where there is evidence of dependence, vulnerability, or a significant power imbalance. Our article on PN v SA explores how allegations of pressure can undermine confidence in “free agreement”, and why careful process matters.
- Proper execution
Execution details matter. The agreement should be carefully drafted, properly signed and witnessed, and supported by a clear paper trail of disclosure and independent advice.
A practical timeline
A workable timetable for many couples is:
- Six to nine months before the wedding – initial advice, agree scope, and start gathering documents
- Four to five months before – exchange financial disclosure and prepare the first draft
- Two to three months before – negotiate and finalise the terms, with both parties taking independent legal advice
- At least 28 days before the wedding – sign, once advice is complete and there is no last-minute pressure
Where possible, we recommend signing earlier than 28 days before the wedding to reduce the scope for later argument about timing or pressure. If the wedding is close, it is often better to consider a postnuptial agreement than to rush a prenup that is vulnerable on process.
Common mistakes and how to avoid them
“We do not want to disclose everything”
Limited or vague disclosure can materially weaken an agreement. If the objective is clarity, disclosure is one of the safeguards that makes the document more defensible.
“We will keep it informal”
Informality tends to create ambiguity, which is usually the opposite of what couples want. Nuptial agreements should be carefully drafted, properly executed, and supported by independent legal advice.
“We only need to cover one asset”
Even if one asset is the main concern, the agreement still needs to make sense against the wider financial picture. Otherwise, it can look artificial when fairness is assessed.
“We can sign it the week before”
A rushed prenup is a common source of later dispute. If time is tight, a postnup is often the more sensible route.
Key takeaways
- Prenups are used by ordinary couples, not only the wealthy.
- In England and Wales, prenups are not automatically binding, but they can carry significant weight if properly prepared.
- The strongest agreements are those supported by full disclosure, independent legal advice, sensible timing, and terms that remain fair in context.
- If the wedding is imminent, it is often better to explore a postnup than to rush a prenup.
Conclusion
A prenuptial agreement will not remove the court’s discretion, but it can make a real difference to how a financial dispute unfolds. The point is not to predict the end of a relationship – it is to avoid uncertainty, and to record intentions while both parties are thinking clearly. If you are considering a prenup, early advice usually pays for itself, because it gives you time to get the process right.
Contact Lisa’s Law today to see how we can help you arrange a prenup which works for you and your partner.
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