Pre-Nuptial and Post-Nuptial Agreements: Status and Enforceability

Radmacher v Granatino [2010] UKSC 42 transformed the law. The Supreme Court held that the court should "give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement". The test is essentially:

• Voluntariness — both parties entered freely, without duress, undue influence, or mistake.
• Informed consent — both parties had a full appreciation of the implications of the agreement.
• Fairness — the agreement is not so unfair that it should not be upheld.

The decision did not make pre-nups binding. The court retains its discretion under section 25 MCA 1973. But the court should now give significant weight to a properly executed agreement. In practice, a well-drafted agreement that meets the procedural requirements and produces a fair outcome will usually be enforced.

Best practice has crystallised since Radmacher:

• Full and frank financial disclosure by both parties, in writing, attached as schedules to the agreement. Both parties certify they have read and understood the disclosure.
• Independent legal advice — separate solicitors for each party. A certificate or schedule recording the advice is best practice. Cost: £1,000-£3,000 per party for a standard pre-nup.
• Timing — at least 28 days before the marriage, ideally longer. Last-minute agreements signed days before the wedding are vulnerable to duress arguments.
• No duress or pressure — the surrounding circumstances should not show coercion, blackmail, or undue influence.
• Review at major life events — the agreement should be reviewed (and possibly replaced) on the birth of children, significant changes in income, or other major changes. A "stale" pre-nup written for a childless couple now with three children is harder to enforce.
• Reasonable provision for needs — the agreement must leave each party with enough to meet their reasonable needs. Cutting a spouse off from any provision when they have given up career for childcare will likely fall.

The agreement can cover:

• Treatment of pre-marital assets (ringfenced or shared).
• Treatment of inheritances and gifts during the marriage.
• Division of the family home and other property.
• Pension treatment — pension sharing or offsetting.
• Spousal maintenance — duration and amount, or clean-break.
• Family business interests and shareholdings.
• The mechanism for valuing the marital pot at separation.

The agreement CANNOT cover:

• Child arrangements — these are decided by reference to the welfare of the child at the time of dispute. An agreement on child residence is unenforceable.
• Child maintenance — the Child Maintenance Service calculates by statutory formula. A pre-nup cannot oust the CMS jurisdiction.
• Provisions amounting to fraud on creditors or evading future tax liabilities.

Recent cases show the court will set aside pre-nups in these circumstances:

• Insufficient disclosure — a party did not know the true assets of the other.
• Coercion or undue influence — particularly common where one party is significantly wealthier or culturally dominant.
• Late signing — within days of the wedding, especially without prior agreement on terms.
• Significant change of circumstances — birth of children, severe illness, redundancy of the economically weaker spouse, major shift in net worth.
• Resulting unfairness — one party is left in real need while the other has substantial assets.
• One party did not have independent legal advice or had a solicitor whose advice was inadequate.

Conversely, properly drafted agreements have been upheld even in significant claims. In Brack v Brack [2018], a US pre-nup limiting financial provision was upheld; in Versteegh v Versteegh [2018], a Swedish pre-nup excluding marital property was substantially upheld.

The Law Commission's 2014 report "Matrimonial Property, Needs and Agreements" recommended introducing "Qualifying Nuptial Agreements" (QNAs) — statutorily binding agreements that meet four requirements: in writing as a deed; full disclosure; independent legal advice for both parties; signed at least 28 days before the marriage. The Government accepted the proposal in principle but legislation has not been brought forward.

Until enacted, the Radmacher discretionary framework remains. The Law Commission proposal — if enacted — would make properly executed QNAs binding except where unfairness reaches the level of "real need". Couples planning to marry now might draft their agreement to QNA standards in anticipation; this is not yet a legal requirement but is good practice.