Are prenuptial agreements legally binding in England and Wales?

The governing authority is Radmacher v Granatino [2010] UKSC 42, in which the Supreme Court held that a court should give effect to a nuptial agreement 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 them to it. That is not the same as binding, but it is a long way from irrelevant.

What makes an agreement stick

• Full and frank financial disclosure by both parties, in writing and attached as schedules, with each certifying they have read and understood it.
• Independent legal advice for each party from separate solicitors, recorded in a certificate. Budget roughly £1,500 to £5,000 per person.
• Timing — signed at least 28 days before the wedding, and ideally much earlier. Agreements produced days before the ceremony are vulnerable to arguments of duress.
• No pressure — nothing in the surrounding circumstances suggesting coercion or undue influence.
• Reasonable provision for needs. An agreement that leaves one spouse in real need while the other holds substantial assets will not survive, however well executed.
• Review at major life events — the birth of children, a serious change in income or health. A stale agreement drafted for a childless couple who now have three children is much harder to enforce.

Limits and the reform that has not arrived

An agreement can deal with pre-marital assets, inheritances and gifts, the family home, pensions, spousal maintenance or a clean break, and business interests. It cannot settle child arrangements, which are decided on the child's welfare at the time of the dispute, and it cannot oust the Child Maintenance Service's statutory formula.

Post-nuptial agreements, signed during the marriage, carry equivalent weight and are the usual way to update an earlier one. The Law Commission recommended in 2014 that properly executed "qualifying nuptial agreements" be made statutorily binding, and the Government accepted the principle, but no legislation has followed — so the Radmacher framework still governs. Drafting to the Law Commission's standard is sensible anticipation rather than a requirement.

Scotland works differently: under the Family Law (Scotland) Act 1985 pre-nuptial agreements are essentially binding, subject to a fairness review, and the bar for setting one aside is higher.