Associate Harriet Collins explores nuptial agreements, their growing influence in divorce proceedings and the ongoing debate over making them legally binding.
Pre-nuptial agreements (entered into before a wedding or civil partnership ceremony) and post-nuptial agreements (entered into during a marriage or civil partnership) are increasingly popular.
I wrote an article a few months ago highlighting the potential benefits of nuptial agreements and their increasing popularity. It is important to remember that whilst the law has evolved over the last few decades and growing importance is placed on nuptial agreements, as it stands, they are not legally binding documents in this jurisdiction. That said, the courts now place increasing influence on such documents and in some cases, they are determinative, particularly if they are both:
- procedurally fair
- substantially fair when looking at the outcome should the marriage break down
Binding nuptial agreements
The question of binding nuptial agreements continues to be a topic that is heavily debated both in the legal community and as a matter of government policy.
The discussions began with the leading case of Radmacher v Granatino in the Supreme Court in 2010 which clarified the current law relating to nuptial agreements. The case confirmed that whilst nuptial agreements are not automatically binding, they should carry significant weight and be of magnetic importance in any divorce proceedings if the couple entered into the agreement voluntarily and with a full understanding of its implications the caveat being unless it would not be fair to do so.
A few years later in 2014, the Law Commission published a report calling for the introduction of qualifying nuptial agreements (QNAs). The suggestion was for nuptial agreements to be binding if they are in a prescribed form and adhere to certain safeguards. The effect would be to limit the court’s power to make financial orders outside of what the agreement provided for except where required to meet either spouse’s needs and/or the interest of a child of the family. Such a system would still give the court flexibility if an agreement did not ensure that financial needs are met.
The government then invited the Law Commission to produce a scoping report looking at the wider topic of financial remedies on divorce. The report was published in December 2024 and again, addressed the question of nuptial agreements and advocated for the introduction of QNAs.
There have also been a number of private members’ bills pushing for reform and most recently, a debate in the House of Lords on 27 February 2025 which centred around the questions of making nuptial agreements binding and recognising individual autonomy and whether the court still requires some discretion to ensure a fair outcome (for example, where they may be unequal bargaining power in a relationship).
Pending any reform to the law, for now, anyone considering entering into nuptial agreements should consider two key elements:
- Ensuring any agreement entered into is procedurally fair: whilst there are no set rules, the Law Commission did set out a number of recommendations and solicitors will advise clients that a number of steps are taken to achieve this as far as possible. This often includes sharing financial disclosure (making sure both parties to the agreement have the material information required to make an informed decision), both receive independent legal advice and making sure there is enough time to conclude the document (often reference is made to 28 or 21 days before a wedding though again there are no set rules).
- Substantive fairness: the terms of the agreement should reflect a fair outcome (though not necessarily one the court would order without such an agreement) and ensure that both parties and any children are able to meet their needs. This often requires some discussion as needs are different for everyone noting each set of facts will vary and there may need to be an element of crystal ball glazing to consider what a future outcome could like depending on where a couples’ life may take them.
The legal status of nuptial agreements remains a watching brief with continued debates and the calls for reform. Whether or not a change in the law is on the horizon, nuptial agreements remain useful documents to set out a couples’ expectations about their finances and as far as is possible, to remove or minimise conflict, uncertainty, stress and costs if that relationship comes to an end.
Harriet Collins is in the family and children team, advising clients on a broad range of family matters including divorce and separation, financial settlements, pre-nuptial and post-nuptial agreements and cohabitation disputes.
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