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Pre-nups and reform – Could legally binding nuptial agreements finally be on the horizon?

More than a decade after first raising the issue in Parliament, Baroness Deech DBE KC has renewed pressure on the Government to act on a long-promised reform: making pre-nuptial agreements legally binding in England and Wales.

Speaking in the House of Lords this month, Baroness Deech criticised the current legal position, arguing that judicial discretion has undermined the effectiveness of pre-nuptial and post-nuptial agreements despite couples often entering into these contracts with legal advice and mutual understanding.

Her comments have reignited debate over whether the law needs to change and whether clearer rules around nuptial agreements could benefit separating couples and the wider family justice system.

What is the current law on pre-nups?

At present, pre-nuptial agreements are not automatically legally binding in England and Wales.

However, they are often upheld by the courts if certain conditions are met. These include:

Both parties entered into the agreement freely and willingly
There was full financial disclosure
Both parties had independent legal advice
The agreement is considered fair at the time of divorce

The key word here is “fair”. Since the landmark Supreme Court case of Radmacher v Granatino [2010], prenups have carried increasing weight, but their enforceability still hinges on judicial discretion.

As Baroness Deech put it, fairness is “a concept that lies in the eyes of the beholder judge”, meaning agreements that couples believed were valid can be challenged if one party later feels entitled to more than originally agreed.

Why is reform being called for?

Baroness Deech, along with other prominent legal figures, including Baroness Shackleton, Baroness Butler-Sloss, and Lord Faulks, argued that the current uncertainty is unhelpful for separating couples and undermines the very purpose of a nuptial agreement.

Supporters of reform are calling for pre-nuptial agreements to be given statutory force, as is already the case in many other jurisdictions, including most of continental Europe and Scotland.

They argue that clear, binding rules would:

Give couples confidence that their agreement will be upheld
Reduce costly and protracted litigation
Encourage openness and early financial planning
Free up valuable court time

Is there a downside?

Judicial oversight may still be needed in some circumstances. For example, where a party has not disclosed debts or assets properly or where one party’s situation changes significantly during the marriage.

This highlights the complexity of the issue.

Any future reform is likely to include safeguards to prevent injustice, but campaigners are urging the Government to act swiftly and provide clarity.

What does this mean for couples today?

While the law may change in the future, for now, pre-nuptial and post-nuptial agreements remain an important planning tool, particularly for:

Couples entering second marriages
Individuals with business interests, family wealth or overseas assets
Those who wish to ring-fence property for children from a previous relationship

Although not yet guaranteed to be binding, courts will give significant weight to a well-drafted agreement, especially where it meets the criteria set out in the Radmacher case.

Calls for reform are welcome and long overdue.

However, until any changes are introduced, the best protection available remains a properly prepared and professionally advised nuptial agreement.

We regularly advise clients on pre- and post-nuptial agreements and help ensure that any agreement is fair and reflective of your wishes, giving you greater peace of mind, whatever the future may hold.

Contact us today for a confidential discussion, and let us help guide you through your options.

Stuart Daniel

Director – Head of Family Department

I qualified as a Solicitor in 2006 and now specialise in divorce, financial settlements, childcare arrangements and Pre Nuptial Agreements. I have many years’ experience as a private family lawyer having worked with two other local firms before returning to Mander Hadley, where I first undertook work experience during my university studies.