This is the question almost every couple asks first. The short answer for England & Wales is: a prenuptial agreement is not automatically legally binding — but that does not mean it carries no weight. A well-prepared prenup is one of the most important factors a court will consider, and in many cases it will be decisive in practice.
The Radmacher decision
The leading case is Radmacher v Granatino (2010), in which the Supreme Court held that a court should give effect to a prenuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless it would not be fair to hold the parties to it. In other words, the starting point shifted firmly towards upholding agreements that are fair and properly made.
Why aren't they automatically binding?
Under the Matrimonial Causes Act 1973 the court keeps a discretion to decide how a divorcing couple's finances should be divided, and a couple cannot completely remove (or "oust") that discretion by private agreement. Two backstops always remain:
- Needs: a court will not hold a couple to an agreement that leaves one partner in real financial need.
- Children: an agreement cannot pre-determine child maintenance or arrangements for any children — their welfare comes first.
What makes a prenup more likely to be upheld?
Drawing on Radmacher and later cases, a prenup is far more likely to be respected where:
- Both partners made full and frank financial disclosure
- Each partner had the opportunity to take independent legal advice
- It was signed well before the wedding (commonly at least 28 days beforehand), free from pressure
- The terms are fair and meet each partner's needs
- It is properly executed — as a deed, signed in front of an independent witness
The future of prenups
The Law Commission recommended in 2014 that "qualifying nuptial agreements" be made binding by statute where certain safeguards are met. That has not yet become law, so for now prenups remain highly persuasive rather than automatically binding.
For what a strong agreement should contain, see what to include in a prenuptial agreement.
Create your prenuptial agreement online
UK Prenup lets couples in England & Wales create a clear, fair prenuptial agreement online from £199, with your document generated instantly as a PDF. See how it works or get started.
UK Prenup is not a law firm and does not provide legal advice. A prenuptial agreement in England & Wales is not automatically binding, and both partners should take independent legal advice before signing.