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Family Solicitors

The Law on Prenuptial Agreements (3 May 2012)

Date: 03/05/2012
Duncan Lewis, Family Solicitors, The Law on Prenuptial Agreements

A prenuptial is an agreement whereby a couple, prior to marriage, decide the division of money and property in the event of a divorce.

The traditional position of Courts in England and Wales was that prenuptial agreements are not enforceable. This position shifted in Radmacher vGranatino (2010) whereby it was stated that it shall be natural to infer that parties who enter into a prenuptial agreement intend for it to be given effect. Vitiating factors and unfair terms will detract from the weight to be given to prenuptial agreements.

The principles of Radmacher were recently considered and applied in the case of ZvZ (2011).

When it comes to negotiating and drafting a prenuptial agreement, from the case law mentioned above and older case law such as KvK , the following features are common when it comes to Courts upholding a prenuptial agreement:

  • The parties have confirmed that they have each received independent legal advice prior to entering into the agreement

  • There should be a minimum time for reflection such as 21 days

  • The parties should fully and frankly disclose their means and relevant circumstances to each other

  • The parties should clarify who is to control assets acquired prior to the marriage by either party and how jointly owned property is to be divided

  • The parties should not enter into the agreement less than 21 days before the date of the marriage

  • A recital should be included which states that without the prenuptial agreement there would be no marriage

  • A provision for children should be included and this can be reviewed during the marriage by way of a post nuptial agreement


The Law Commission are due to produce a report on ‘marital property agreements’ in 2012. Prenuptial agreements are put before the Court more regularly and are likely to become more common amongst all clients, not just the very wealthy anymore.

Given the expense of litigating and people’s own experiences of marriages, more people are opting for a prenuptial agreement to secure their financial position and protect that which they have worked hard to accumulate before marriage.


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