Why are nuptial agreements so popular?
Nuptial agreements such as prenups and postnups have soared in popularity in recent decades. There are a few key reasons for this that we as family lawyers have seen become themes across our nuptial agreement work:
- The celebrity effect: The influence of A-listers and High-Net-Worth couples who implement ironclad prenups hoping to ringfence their individual wealth, particularly where there is a disparity
- Later marriages: People are marrying later in life, with the average age of marriage increasing from 29.6yrs to 34.8yrs for men and 27.6yrs to 32.9yrs for women year on year. As part of this, couples are building portfolios before they start cohabiting, or entering marriage, which means they have far more to take into a marriage than often previous generations did
- Second marriages: Many of these people entering second or third marriages want to ringfence assets for children of previous relationships, for example property or savings, leading them to implement a prenup
A survey run by the Marriage Foundation found that 20% of couples in the UK now sign a prenuptial agreement, in comparison to just 8% in 1990. We have certainly seen a shift in attitude recently, where younger couples particularly are focusing on individual financial protection. Often, the sad reality that 42% of marriages now end in divorce is a factor in this decision. But in many relationships, it’s less about the belief that the marriage will be short-lived, and more about being financially ‘savvy’.
Are nuptial agreements legally binding?
Prenups and postnups are not automatically legally binding. However, they are formal contracts that exist between a couple, and their terms can be relied upon by a judge making a decision in a court dispute. They are currently reliant on years of case law, specifically Radmacher v Granatino [2010] where the Supreme Court set out that a nuptial agreement should be upheld unless it would be unfair to either party.
In the event that the court deems the agreement to be unfair and would leave one without sufficient means to rebuild after a relationship, or if the criteria required in their production was not met, the court can deviate from the terms laid out.
Solicitors tip: In order for your nuptial agreement to be upheld in a dispute, it needs to follow set criteria, and have been drafted by a family lawyer. Importantly, it needs to be signed at least 28 days before your wedding (unless you are getting a postnuptial agreement), you and your partner must both provide full and frank financial disclosure, and you both need to receive independent legal advice.
What does the Government propose for nuptial agreements in the consultation?
The UK Government’s consultation ‘A fairer end to relationships’ explores the existing family law structure regarding the end of marriage and cohabiting relationships. It is an early-stage interaction with the legal sector, and, to some extent, the general public, about how legal frameworks could be improved to better support couples when their relationships break down.
The consultation focuses on financial support for individuals, and improving situations for financially vulnerable individuals, particularly those in cohabiting partnerships where one party has been financially dependent on the other. Only upon separation do many people realise they have limited legal recourse to claim on property or finances when they are unmarried.
One key aspect of the consultation is the proposal to make nuptial agreements, termed Qualifying Nuptial Agreements (QNUs) legally binding, provided they meet certain criteria. The Government refer to the Law Commission’s 2014 recommendation for legally binding nuptial agreements, to be termed QNUS, within its Matrimonial Property, Needs and Agreements report, which were re-confirmed by the Commission in 2024.
Whilst there has been ‘overwhelming stakeholder support’ (A fairer end to relationships consultation document), the Government proposes robust safeguards to ensure individual parties are protected and minimise the risk of coercion.
The safeguards recommended are very similar to the existing case law criteria and include:
- Contract validity: The contract must not have been drawn up or signed under undue influence or misrepresentation
- Execution as a deed: Signed by both parties with an understanding that the QNU would partially remove court discretion in making financial orders
- 28-day period: The agreement must not have been made within 28 days of the wedding or civil partnership
- Material financial disclosure: Each party must provide full and frank financial disclosure
- Independent legal advice: Each party must receive their own legal advice from a specialist family lawyer
A QNU would not remove the entirety of the court’s discretion in making a financial order in divorce, where ‘needs’ have not been met by the agreements set out. However, the Government proposes that where a QNU is in place, the definition of parties’ needs would be narrower than in situations where there is no QNU.
What would be the benefit of a legally binding prenup?
It would be easy to say that prenups and postnups should be made legally binding. There has been a great deal of discussion around the topic, and the safeguards proposed by the Government would help to ensure that the risks associated are minimised and individuals cannot be forced into signing them.
Where both parties have entered into a nuptial agreement freely, with full financial disclosure and independent legal advice, there is a compelling argument that their decision should be respected.
Individuals are generally trusted to make legally binding decisions in other areas of their lives, from purchasing property to entering into commercial contracts. Marriage should not necessarily be treated differently where appropriate safeguards have been met. Greater certainty would also encourage constructive conversations before marriage, allowing couples to agree how assets should be treated and reducing the scope for costly disputes if the relationship later breaks down.
For family lawyers, legally binding nuptial agreements could also help to manage expectations and narrow the issues in financial remedy proceedings. At present, even the most carefully drafted agreement cannot completely remove the possibility of litigation because the court retains the ultimate discretion to determine whether it should be upheld. That uncertainty can undermine confidence in the process and encourage parties to challenge agreements in the hope of achieving a different outcome.
A binding framework, subject to robust protections against coercion, exploitation and unfairness, would provide greater predictability for separating couples while still preserving essential safeguards for the financially vulnerable. It would also reinforce the principle that, where informed adults have made a clear and voluntary decision about their financial future together, that decision should ordinarily be respected.
It is worth bearing in mind, however, that the court will still have an element of discretion even where a QNU was in place, just somewhat narrower than in cases where there is no QNU.
What would be the purpose of a QNU if needs and sharing are codified?
One of the major arguments against making nuptial agreements legally binding, however, is based on the other recommendations made within the Government’s consultation, specifically the proposed codification of the core principles of needs and sharing.
Understand more about the Government’s plans to codify needs and sharing in our latest article.
The Government has proposed a statutory framework which would codify the concepts of needs and sharing, essentially ensuring that the financial needs of each party need to be met after separation, in as close a way as possible to the standard of living experienced during the marriage.
The aim of this is to give couples more certainty over potential financial outcomes on divorce and would also allow the new concept of ‘compensation’ to be used in England and Wales. This would require the courts to consider any economic disadvantage experienced by one party.
The case of Standish v Standish has also provided more clarity in what counts as matrimonial and non-matrimonial property in divorce cases, and what should be included within the marital pot. Family lawyers have set boundaries, and a definition of ‘matrimonialisation‘ within this. Therefore, the question is: with all these clarifications, codified and set precedents, what benefit would a QNU actually bring?
Would nuptial agreements effectively become redundant, because the statutory framework offers the most amount of certainty possible, whilst retaining a degree of flexibility through court discretion?
Arguably, nuptial agreements would not become redundant, but their function would likely change because there would be more predictability within the system itself. However, a legally binding QNU would play a key role in relationships and separation by:
- Allowing couples to ‘contract out’ of the default position
- Giving certainty beyond what the proposed legislation would be able to give
- Support couples with relationship management, specifically in financial decision such as with disclosure, income/career expectations, children, inheritance and everyday finances
Should nuptial agreements be made legally binding?
Figen Demiri, a family solicitor in our Wimbledon family law office, explains:
“The principle should be that nuptial agreements are binding, provided they have been properly entered into. I often meet clients who are surprised by the work involved in preparing nuptial agreements, beginning the process with a view of what they want the agreement to say, only to find that once they have received legal advice and had proper financial disclosure, their position has evolved. That process is important, if litigation and the need for judicial intervention is to be reduced, the real value lies in requiring the parties to confront and carefully consider their financial arrangements at the outset.”
Importantly, nuptial agreements should be drafted by a family lawyer. Get in touch with our team to understand the process.
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