Law relating to prenuptial agreements

Approximate read time: 15 minutes

On 27 February 2025, the House of Lords is due to consider the following motion:

Baroness Deech (Crossbench) to move that this House takes note of the law relating to prenuptial agreements.

This briefing sets out the legal status of prenuptial agreements in England and Wales, discusses proposals to reform the law relating to such agreements and provides commentary on them.

1. What is a prenuptial agreement?

A prenuptial agreement, also known as a ‘premarital agreement’ or ‘ante-nuptial agreement’, is an agreement made by a couple before their marriage or civil partnership.^[1] It specifies the assets each party brings to the relationship, including inheritances, and outlines how these and any assets acquired during the relationship would be divided upon separation, divorce, or dissolution.

Although there are no official statistics on prenuptial agreements, recent data has provided an insight into their prevalence. Co-op Legal Services reported that the number of prenuptial agreement sales had increased by 60 percent compared with the number of agreements sold in 2022. It also reported that 21 percent of married people in Britain had a marital agreement in place.^[2]

Additionally, a recent survey has suggested public attitudes towards prenuptial agreements have become more favourable in recent years. A 2023 YouGov survey found that 42 percent of British people viewed them as a “good idea”, compared to 13 percent who considered them a “bad idea”.^[3] A similar 2003 poll found that 35 percent of respondents would sign a prenuptial agreement, while 36 percent would not.

2. What is the current legal status of prenuptial agreements?

At present, courts in England and Wales consider factors outlined in section 25 of the Matrimonial Causes Act 1973 and schedule 5 of the Civil Partnership Act 2004 to determine financial settlements following divorce or dissolution. Factors include each party’s income and responsibilities. While prenuptial or postnuptial agreements are not automatically enforceable, a landmark 2010 Supreme Court ruling determined that courts should give effect to such agreements, provided that they are entered into freely by both parties with a full understanding of their consequences, unless doing so would be considered unfair.^[4]

The legal case of Radmacher v Granatino involved a marriage between Katrin Radmacher, a German heiress, and Nicolas Granatino, a French banker.^[5] Prior to their wedding in 1998, the couple signed a prenuptial agreement in Germany, which stipulated that neither would claim against the other in the event of divorce. The prenuptial agreement was in force in France and Germany. During their marriage, Mr Granatino changed careers and moved from investment banking to academia. The couple separated in 2006. In subsequent divorce proceedings, Mr Granatino sought financial provision from Ms Radmacher, who argued that the prenuptial agreement should be upheld. In 2008, the High Court awarded Mr Granatino a lump sum of £5.6mn.^[6]

The Court of Appeal overturned the decision in July 2009, following an appeal by Ms Radmacher concerning the prenuptial agreement’s enforceability.^[7] In his judgment, Lord Justice Thorpe stated:

[…] pending the report of the Law Commission, in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings.^[8]

In 2010, the Supreme Court dismissed Mr Granatino’s subsequent appeal.^[9] In a majority judgment (of eight to one), the justices held that courts should give effect to nuptial agreements that are “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”.^[10] The justices further said that “in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it”.^[11] However, this would be on a case-by-case basis by the courts:

There can be no question of this court altering the principle that it is the court, and not any prior agreement between the parties, that will determine the appropriate ancillary relief when a marriage comes to an end, for that principle is embodied in the legislation. What the court can do is to attempt to give some assistance in relation to the approach that a court considering ancillary relief should adopt towards an ante-nuptial agreement between the parties.^[12]

Lady Hale dissented, highlighting the status and legal consequences of marriage.^[13] She stated:

Marriage is, of course, a contract, in the sense that each party must agree to enter into it and once entered both are bound by its legal consequences. But it is also a status. This means two things. First, the parties are not entirely free to determine all its legal consequences for themselves. They contract into the package which the law of the land lays down. Secondly, their marriage also has legal consequences for other people and for the state. Nowadays there is considerable freedom and flexibility within the marital package but there is an irreducible minimum. This includes a couple’s mutual duty to support one another and their children. We have now arrived at a position where the differing roles which either may adopt within the relationship are entitled to equal esteem. The question for us is how far individual couples should be free to re-write that essential feature of the marital relationship as they choose […]

In my view the Court of Appeal erred in principle in treating a parent who has been married to the other parent in the same way as they would treat a parent who has not. If, for example, a parent has irredeemably compromised her position in the labour market as a result of her caring responsibilities, she is entitled to at least some provision for her future needs, even after the children have grown up. It would not be fair for an ante- or post-nuptial agreement to deprive her of that. Where parents are not married to one another, there is nothing the court can do to compensate her. But where they are, there is. A nuptial agreement should not stand in the way of producing a fair outcome.

Lady Hale also criticised the law regarding marital agreements, describing it as “in a mess” and “ripe for systematic review and reform”.^[14] Further, she suggested that “this is just the sort of task for which the Law Commission was established” and could make “detailed proposals for legislative reform” for Parliament to consider.

3. What proposals have there been to reform the law?

3.1 Law Commission review into matrimonial property, needs and agreements: 2014

In 2009, the Law Commission undertook a project to review the legal standing of marital property agreements.^[15] This included the treatment of prenuptial, postnuptial and separation agreements by the courts. The Law Commission noted the judgment delivered by the Supreme Court in the Radmacher v Granatino case, which said that these agreements should be given “decisive weight” unless they were considered unfair. In 2011, the Law Commission launched a consultation to review the law relating to marital property agreements and explore potential reforms. The project was extended in 2012 to include financial provision arising from either the divorce or dissolution of a civil partnership.^[16]

The Law Commission published its final report in February 2014.^[17] The report made several recommendations, including for legislation to be enacted to introduce a new form of marital property agreement in England and Wales, known as “qualifying nuptial agreements”. The Law Commission suggested that qualifying nuptial agreements would be a “reliable way for couples to decide in advance how their property will or will not be shared, without having the fairness or unfairness of their agreement scrutinised by the court”. The Law Commission also stated that such agreements would not prevent parties from applying for financial orders to address financial needs or remove the courts’ jurisdiction to make such orders.

The Law Commission said that there should be several requirements placed on qualifying nuptial agreements to “ensure, as far as is possible, that such agreements are only made knowingly and willingly, and without giving rise to hardship (whether foreseen or unforeseen)”.^[18] These included:

• The agreement must be contractually valid (and able to withstand challenges based on undue influence or misrepresentation, for example).
• The agreement must be made by deed and include a statement signed by both parties confirming their understanding that the agreement is a qualifying nuptial agreement that will partially remove the court’s discretion to make financial orders.
• The agreement must not be made within 28 days immediately preceding the wedding or civil partnership ceremony.
• Both parties to the agreement must have received, at the time of the making of the agreement, disclosure of material information about the other party’s financial situation.
• Both parties must have received independent legal advice when the agreement was formed.

Additionally, it recommended against allowing parties to waive their rights to disclosure and legal advice.^[19] The report also included a copy of a draft nuptial agreements bill, which would have legislated for such changes and would have extended to England and Wales.^[20]

In April and September 2014, Simon Hughes, the then minister for justice and civil liberties, wrote to the Law Commission.^[21] On its website, the Law Commission noted that these letters formed the then government’s interim response to its recommendations. The Law Commission reported that the government “considered that there was unlikely to be time” for the proposed bill to progress through Parliament prior to Parliament dissolving in March 2015. Therefore, the government “took the view” that a final response regarding nuptial agreements would be deferred until the next parliament, allowing the new government time to consider the recommendations and the draft bill.

In July 2022, the then government was asked in a written question whether it would implement the Law Commission’s recommendation regarding qualifying nuptial agreements and introduce the draft nuptial agreements bill detailed in the Law Commission’s report.^[22] Responding, Lord Bellamy, then parliamentary under secretary at the Ministry of Justice, stated that the government was “taking forward” its commitment to review the legislation surrounding financial provision following divorce, which included nuptial agreements. He further said that any decision to introduce new legislation, including the draft bill, would be “considered against the context of the wider review”.

There has been no further government response to the Law Commission’s recommendations regarding nuptial agreements as of February 2025.

3.2 Law Commission review into financial remedies on divorce: 2023

In March 2023, the Law Commission, at the request of the Ministry of Justice, undertook a scoping project into financial remedies on divorce.^[23] On a webpage detailing the project, the Law Commission stated that the law governing the use of financial remedy orders, the Matrimonial Causes Act 1973, was “several decades old” and “mirrored” in the Civil Partnership Act 2004. Therefore, the government had asked the Law Commission to review whether the law was “working effectively” and “delivering fair and consistent outcomes for divorcing couples”.

The Law Commission published its scoping report in December 2024.^[24] Although the report did not make recommendations for reforming the law, it found that the law “does not […] provide a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes”.^[25] Therefore, the report concluded that it was for the government to decide “how this situation might be remedied” but that the Law Commission had identified four potential models for such reform:

• codifying existing law
• codifying the law and providing statutory reform on “discrete” issues, such as prenuptial agreements
• introducing a set of underpinning principles and objectives to guide judicial discretion
• creating a “matrimonial property regime” that would establish rules for property division upon divorce, with the court’s discretion “strictly confined”

3.3 Labour government policy

In December 2024, the government was asked in a written question about its plans to consider the options for reform outlined in the scoping report.^[26] Lord Ponsonby of Shulbrede, a parliamentary under secretary at the Ministry of Justice, responded that the government would “carefully consider” the options and provide a response “in due course”.

The Labour government has not made further statements about its policy on nuptial agreements or financial remedies on divorce. However, in its 2024 general election manifesto, it committed to strengthening the rights and protections available to women in cohabiting couples.^[27] In January 2025, the chair of the House of Commons Justice Committee, Andy Slaughter, wrote to Lord Ponsonby to identify the government’s timeframe for implementing its commitment.^[28] On 10 February 2025, Lord Ponsonby responded to Mr Slaughter’s letter.^[29] The minister stated that the government was “working hard” on delivering the manifesto commitment and would be issuing a formal consultation “later this year in order to build public consensus on what cohabitation reform should look like”.

3.4 Private members’ bills on divorce and financial provision

In July 2017, Baroness Deech (Crossbench) introduced the Divorce (Financial Provision) Bill [HL] in the House of Lords.^[30] The bill sought to amend section 25(2) of the Matrimonial Causes Act 1973, replacing it with a series of principles that would apply in the determination of applications for financial orders in divorces. Clause 3 of the bill aimed to make written prenuptial and postnuptial agreements binding, subject to certain exceptions.

During the bill’s second reading in the House of Lords in May 2018, Baroness Deech outlined her reasoning for wanting to make prenuptial agreements legally binding:

The Law Commission recommended that prenuptial agreements should be binding and that the old bias against them was ended in the Supreme Court decision in Granatino. However, so many conditions are attached to their binding nature by the Supreme Court that couples now spend a fortune on litigating over whether or not the prenuptial agreement is in fact binding […]

My bill would put prenups on a statutory footing, with few conditions except those that normally apply to avoid fraud and duress in contracts. It may not quickly become the custom in this country for engaged couples to enter into such a contract, although it is de rigueur in most of continental Europe. For older couples who would like to enter a second marriage but are fearful that if the second marriage went wrong the children of the first marriage would lose out to the second husband, the ability to sign a prenup would allow them to marry with reassurance that the children would be protected and would not lose out […]

Giving them statutory force would have the advantages of improved predictability of outcomes, meeting public expectations that they can make their own arrangements and maybe encouraging marriage for those who, with past bad divorce experience, may be reluctant to commit again to a potentially financially ruinous legal situation.^[31]

Responding on behalf of the then government, Baroness Vere of Norbiton, then a government whip, said the government was considering a similar recommendation by the Law Commission “which has additional safeguards”. She added that the government was considering the introduction of nuptial agreements and would “make our position known on this recommendation in due course”.^[32]

The bill completed its House of Lords stages on 19 December 2018. It had its first reading in the House of Commons on the same day but did not progress further.^[33]

A similar bill of the same name was introduced by Baroness Deech in the 2021–22 session but did not progress past first reading.^[34]

4. What recent commentary has there been on the future of prenuptial agreements?

Some legal commentators and law firms have called for prenuptial agreements to become legally binding. Robert Buckland, a former secretary of state for justice and consultant for the law firm Paynes Hicks Beach, argued in a 2024 Times article that these agreements offered couples “peace of mind when it comes to their assets” and removed a “potentially divisive issue”.^[35] He suggested that while “some progress was made” following the 2010 Supreme Court ruling, legislation would “make their legal effect crystal clear”. Similarly, Lucy Hart, a family lawyer and director at Sinclair Law, also called for legally binding agreements.^[36] In a 2024 blogpost, she argued that the “lack of binding prenuptial agreements” had left some couples “in a state of limbo, unable to fully rely on the agreements they made in good faith”. She further stated that implementing binding prenuptial agreements would “not only align us with other modern legal systems but also provide much-needed clarity and security for couples planning their futures together”.

However, others have emphasised the importance of continued judicial discretion to ensure fairness and protect vulnerable parties from such agreements. Kirsten Tomlinson, a senior associate at the law firm Brabners, highlighted factors considered by family courts “when faced with dividing a matrimonial pot”, as outlined in section 25 of the Matrimonial Causes Act 1973.^[37] She argued that making prenuptial agreements legally binding would “remove the need [for courts] to apply these factors, thereby removing the last layer of protection for the financially weaker party”.

5. Read more

• Jane Keir, ‘Fifteen years on: The impact of Radmacher on UK prenups and divorces’, Kingsley Napley’s Family Law blog, 5 February 2025
• House of Commons Library, ‘Pre-nuptial agreements’, 16 October 2023
• Vikkie Chetcuti-Gee, ‘Prenups: How well will they hold up in court?’, FT Adviser, 10 August 2023
• House of Commons Library, ‘Financial provision when a relationship ends’, 13 July 2023

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