By Amanda Wilson Partner – Berry & Lamberts Solicitors
Once seen as something only for the very wealthy, many couples now view a “prenup” as sensible financial planning, rather like making a will or taking out life insurance.
What is a prenuptial agreement?
A prenuptial agreement is a written agreement entered into before marriage, setting out how a couple intend their assets and finances to be divided if the marriage later breaks down. A postnuptial agreement does the same thing after the wedding. The courts treat both in broadly the same way, and civil partners can make equivalent agreements.
This article deals with England and Wales only. The law in Scotland and Northern Ireland is different.
Are prenuptial agreements legally binding?
A prenup is not automatically binding in England and Wales. On divorce, the court keeps overall discretion over finances, guided by section 25 of the Matrimonial Causes Act 1973. No agreement can remove that discretion.
However, a prenup can still carry real weight if both parties entered into it freely, understood its implications, and it would not be unfair to hold them to it.
What makes an agreement persuasive?
The weight given to a prenup depends heavily on how it was made. In particular:
- Both parties should enter into the agreement freely, without pressure.
- Each should take independent legal advice from their own solicitor, so that nobody can later say they did not understand what they were signing.
- There should be full and honest disclosure of assets, income and debts on both sides, because an agreement based on hidden finances is vulnerable to challenge.
The agreement should also be completed in good time before the wedding. Although “at least 28 days before the wedding” is often quoted, it is not currently a fixed legal rule, however it is sensible guidance.
What a prenup can and cannot do
A prenup can help protect wealth built up before marriage, keep an inheritance or family gift separate, set out how a family business should be treated, and clarify what each person is bringing into the relationship. It can also be helpful in later-life or second marriages, particularly where someone wants to protect assets for children from an earlier relationship.
There are limits. An agreement cannot override the court’s duty to meet the basic financial needs of either spouse or any children. It cannot decide child arrangements, which are based on the child’s best interests, or enforce personal lifestyle conditions within a marriage.
Why are more couples considering them?
More people are marrying later, often after acquiring property, savings, pensions or a business. Second marriages and blended families are also common reasons for wanting clarity. The Law Commission has highlighted inherited and wider family wealth, farming families wishing to keep land intact, and international couples familiar with fixed matrimonial property rules as further drivers.
A change on the horizon
In June 2026 the government published a consultation proposing legally binding “qualifying nuptial agreements”. Under the proposal, agreements meeting key safeguards could bind the court rather than simply be persuasive. These safeguards include a deed, signature at least 28 days before the wedding, financial disclosure and independent legal advice. Couples still could not contract out of meeting each other’s or their children’s needs, however this remains a proposal, not the law.
Where to go from here
A prenuptial agreement can offer reassurance, but only if it is properly prepared. If you are considering a prenup or want to understand how the proposed reforms might affect you, speak to a solicitor for advice tailored to your circumstances.
