The Rise and Fall of Pre-Nuptial and Post-Nuptial Agreements in England and Wales

Nuptial agreements are contracts made between couples to set ownership and division of assets either before marriage (Pre-Nuptial) or after marriage (Post-Nuptial). These agreements set out how assets, debts, income, and potentially spousal maintenance will be managed if the marriage ends in divorce or dissolution.

Pre-nuptial and post-nuptial agreements were once viewed with suspicion by courts in England and Wales. Today, while not legally binding in the same way as in some other jurisdictions, they carry significant weight, particularly when prepared properly and deemed fair. However, as relationship norms and judicial attitudes evolve, the role of these agreements is once again under scrutiny.

This article explores the rise, transformation, and partial decline of Pre-Nuptial and Post-Nuptial agreements in England and Wales, and what their future might hold.

The Rise: From Taboo to Common Practice

Historically, English courts were cautious of pre-nuptial agreements, viewing them as undermining the sanctity of marriage. Until the early 2000s they were, generally, disregarded in divorce proceedings.

However, this began to change with landmark cases, culminating in the Supreme Court’s decision in Radmacher v Granatino [2010] UKSC 42. This case marked a turning point, with the court ruling 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 it would be unfair to do so.

This decision did not make pre-nups automatically binding, but it significantly increased their influence. Provided they are entered into freely, with full financial disclosure and independent legal advice, courts are now likely to uphold them unless they result in unfair outcomes—particularly to the weaker party.

Post-nuptial agreements, although historically viewed with more acceptance due to being signed during marriage, have followed a similar trajectory and are now seen through the same legal lens.

Legal Status Today: Influential, Not Binding

Under the current law in England and Wales, pre-nuptial and post-nuptial agreements are not strictly binding, but courts will usually uphold them if certain safeguards are met. These include:

• Voluntary agreement by both parties.
• Full financial disclosure.
• Independent legal advice.
• Signed well in advance of the wedding (for pre-nups).
• The agreement must not be manifestly unfair or prejudicial to any children.

The courts retain ultimate discretion, especially under the Matrimonial Causes Act 1973, which mandates a fair outcome based on needs, contributions, and welfare of any children.

The Fall: Changing Attitudes and Practical Limits

Despite the rising acceptance of these agreements, their influence is weakening in certain respects. The reasons for this are:

1. Not Truly Binding: Many people misunderstand the legal force of a pre-nup. The fact that the court can still override it creates uncertainty, especially compared to countries where they are fully enforceable.
2. Shifting Judicial Emphasis on Fairness: Courts prioritise fairness over strict adherence to a contract. Even a well-drafted agreement may be altered if it fails to meet a party’s reasonable needs.
3. Evolving Social Norms: Younger couples are less focused on asset protection and more on mutual partnership. Emotional wellbeing, equality, and adaptability are often prioritised over static financial contracts.
4. Financial and Legal Complexity: Creating a robust agreement involves substantial legal input, which can be expensive and emotionally challenging, particularly when one party perceives an imbalance in wealth or power.

A Changing Landscape

Though no longer novel or controversial, pre- and post-nuptial agreements are no longer seen as silver bullets for relationship planning.

Couples in England and Wales are increasingly turning to:

• Cohabitation agreements, especially among those choosing not to marry.
• Financial planning and mediation, both during and after marriage.
• Ongoing dialogue and soft agreements around finances and family roles.

Law reform bodies, including the Law Commission, have considered recommending changes to make nuptial agreements binding under specific statutory frameworks, but no legislation has yet been passed.

Conclusion

In England and Wales, the rise of pre-nuptial and post-nuptial agreements reflects greater autonomy and transparency in relationships. But their limits, and the emphasis courts place on fairness, mean their role is now more advisory than decisive.

Their fall is not one of irrelevance but of redefinition. They remain valuable tools, particularly for those with significant assets or international elements to their relationship, but they must be handled with care, clarity, and compassion.

The Family Team here at Hopkins Solicitors are here to support you if:

• you wish to protect your inherited or pre-marital assets
• You would like to safeguard your business interests
• One party has significantly greater wealth
• You have concerns around protecting your children from previous relationships in second marriages
• You want to reduce conflict and cost in the event of separation
• You wish you clarify and set financial expectations and increase transparency

If you would like to find out more about the services we provide and how we can help you, please contact the family team today.