Pre Nuptial Agreements are increasingly favoured by couples planning to marry or enter civil partnerships, but want to decide themselves how their finances and assets should be dealt with on separation.
Traditionally, Pre Nuptial Agreements were considered contrary to public policy, but times have changed. The courts will now generally consider the contents of a Pre Nup, unless it would be unfair or inequitable to do so.
At mfg Solicitors, clients regularly consult the specialist Family team about whether they ought to consider a Pre Nup. Anyone contemplating entering into a Pre Nup should think carefully about several important factors.
When are Pre Nuptial Agreements most useful?
Pre Nuptial Agreements are not just for wealthy couples. They are also valuable where, for example:
- Either party is entering into the marriage (or civil partnership) with significantly more wealth than the other
- Both parties are entering into the union with pre-marital wealth, such as an inheritance
- There is a ‘blended’ family, with children from earlier relationships needing financial protection and certainty
Do I need to disclose financial matters?
Case law makes it clear that both parties should produce their financial information during negotiations for a Pre Nup – in order to give the agreement more weight.
If a party deliberately and deceitfully withholds financial information from the other, the resulting Pre Nup will most likely be considered unfair and unenforceable (Hallilwell v Entwistle (2025).
Do we both need legal advice?
The Supreme Court made clear (in the landmark case of (Radmacher v Granatino) that a Pre Nup should be freely entered into by each party with a full appreciation of its implications.
Ideally, both parties should take independent legal advice before signing a Pre Nup, otherwise it could be difficult to demonstrate that they fully appreciated the implications of the terms agreed. There are several cases where the court has refused to uphold the terms of a Pre Nup because one party had not taken legal advice at the time.
The ‘fairness’ requirement
A Pre Nup is most likely to be upheld where the agreed terms are fair and do not disadvantage one party. This means that what was agreed should fall within the parameters of what the family court may award on divorce.
It is important to understand that circumstances can change significantly between the Pre Nup and a future divorce. So, what was fair at the time of the Pre Nup may not be fair on relationship breakdown. It is therefore important to take appropriate legal advice to discuss how these issues can be factored into any Pre Nup.
An obvious example is where the parties had children in the years after entering into the agreement. Under s25 Matrimonial Causes Act the child’s welfare is the court’s first consideration.
What other issues should I consider?
Further factors that may impact the validity of a Pre Nup include:
Coercion and pressure: a Pre Nup signed as a result of a party being bullied, coerced, unduly influenced or pressured by ‘unconscionable conduct’ will probably be invalid.
Timing: It is therefore important that a Pre Nup is entered into in sufficient time prior to any wedding.
Clarity: the Pre Nup should be clearly and unambiguously drafted to avoid an expensive dispute further down the line.
Review: If the agreement provides for a review if an event occurs, be careful not to forget or overlook it.
How we can help
For expert advice on Pre Nuptial and Post Nuptial Agreements, and financial matters on divorce, contact Katherine Tippetts on 01562 820181 or email katherine.tippetts@mfgsolicitors.com.