The evolving landscape of nuptial agreements

It was not so long ago that nuptial agreements were widely thought to be controversial and unromantic – a “vote of no confidence” signed at the outset of a marriage. They were perceived to be the domain of the ultra-wealthy; an unusual common thread for footballers, A-list celebrities and Russian oligarchs alike. In recent years however, public opinion has shifted. Nuptial agreements are growing in popularity, and the drafting of such agreements is an increasingly common work-type for family lawyers.

In 2003, a YouGov poll revealed that 35% of those surveyed would agree to sign a pre-nuptial agreement. Ten years later, a similar survey found that 42% of British people agreed that nuptial agreements are a “good idea”. In another survey conducted just 2 years later, that number had increased to 55%.

The jury is out as to exactly how many married couples have already entered into nuptial agreements in the UK. Co-op legal services conducted a survey in 2023 which suggested that around 21% of married Brits have a nuptial agreement in place. The “Fair Shares” report (a detailed family law research project which was published by Bristol University in 2023) noted that 13% of the 2,415 divorcees interviewed confirmed they had a nuptial agreement in place – although a proportion of those had misinterpreted the question and were in fact referring to informal agreements, “gentleman’s agreements” and / or declaration(s) of trust, rather than nuptial agreements.

The starting point in divorce cases is for capital and pension assets to be shared equally between the parties. However, in reality, there are various reasons why the Court might be persuaded to depart from a 50/50 division of the assets. The Fair Shares report confirmed that just 28% of interviewed divorcees received “around half” (between 40-59%) of the total asset pool following their divorce. With 42% of UK marriages expected to end in divorce, it is little wonder that there is growing interest in the financial protection and security that nuptial agreements can offer. But the question is…how reliable are these agreements?

The Legal Status of Nuptial Agreements

Nuptial agreements are not currently legally binding in England and Wales. When a married couple separates, the Family Court has discretion to make a financial order and in doing so will simply consider the various factors listed at Section 25 of the Matrimonial Causes Act 1973. As noted by Lord Faulks in a parliamentary debate relating to nuptial agreements earlier this year, the statute “gives the Court very wide discretion but no clear guidance as to how to apply that discretion…it simply lists the vast number of factors that must be taken into account….the result is that the Court themselves have made the law…this leaves a considerable degree of uncertainty as to outcome”. Nuptial agreements are not referred to in the existing statute. Whilst nuptial agreements may be considered as part of the factual background to a case, the Court is under no obligation to uphold them.

In the case of Radmacher v Granatino [2010] UKSC 42, the Supreme Court considered the weight that should be attached to a nuptial agreement. Radmacher was the first reported case in which the principle of nuptial agreements (and the extent to which they should be recognised) was thoroughly examined by the Court. Fifteen years later, it continues to be the leading authority on nuptial agreements.

The conclusion of the Supreme Court in Radmacher v Granatino was that “the Court should give effect to a nuptial agreement that is freely entered into by each party, with a full appreciation of its implications, unless in the circumstances prevailing it would be unfair to hold the parties to the agreement”. The Court recognised that “the autonomy of adults should be respected” and there is “nothing inherently unfair about an agreement that seeks to ring-fence non-matrimonial property”.

The practical principles arising from Radmacher v Granatino are therefore as follows:

• The agreement should be freely entered into: A nuptial agreement will not be upheld if it was the result of either party being subject to duress, pressure or undue influence.
• The parties should have a full appreciation of its implications: Both parties should be in possession of material financial disclosure and should receive independent legal advice; and
• It must be fair to hold the parties to the agreement: The agreement must ensure that the parties’ needs are met at the time of separatio

The Law Commission’s Recommendations

In 2014, The Law Commission published a report which recommended that the government introduce legislation to make “qualifying nuptial agreements” automatically legally binding. The recommendations made in the report suggested that a qualifying nuptial agreement should satisfy the following criteria:

• The agreement must be contractually valid;
• It must be made by deed and include a signed by both parties, confirming their understanding that the agreement is a qualifying nuptial agreement which will partially remove the Court’s discretion to make financial orders;
• The agreement must not be entered into less than 28 days before the marriage;
• Both parties must receive material information about the other party’s financial situation; and
• Both parties must receive independent legal advice.

The report was published in February 2014. The then-government suggested that consideration of the recommendations be deferred to the next parliament following the general election in May 2015. However, ten years later, there has still been no substantive government response to the recommendations.

Parliamentary Debates and Diverging Views

In February 2025, the enforceability of nuptial agreements was debated in the House of Lords. In her opening remarks, Baroness Deech stated “I am often taken to one side by elderly female Peers to beseech me to reform the law in this area. They are reluctant to marry or re-marry long-term partners because of fearing the loss of assets should there be a separation…the Office for National Statistics has shown that the number of divorcees over 65 has increased by 75% in the last 20 years…members of the public are well aware of, and intensely anxious and upset by, the law about splitting assets on divorce. I have never received a letter in support of the existing law on this topic”.

During the debate, Baroness Deech argued that the existing law laid down in Radmacher, which ultimately requires agreements to be fair (a “concept which lies in the eye of the beholder judge”), has left the Court with too much jurisdiction and has in turn “undermined the usefulness” of nuptial agreements. Baroness Shackleton lent her support to the debate, imploring the government to “address this matter and fix the leaking roof”.

These views were opposed by The Lord Bishop of Southwell and Nottingham, who expressed concern that “increasing normalisation may lead to undue pressure on prospective spouses to sign away their rights without fully comprehending the longer-term consequences”. Similarly, Baroness Butler-Sloss expressed reservations about the concept of automatically binding nuptial agreements. She noted that “for the majority of people who enter into a prenup, that should be the beginning and end of their financial affairs” but suggested that a judge should ultimately “have discretion to deal with two instances: the moment of going into the agreement and the moment when the agreement comes into force”.

Clearly the debate rages on and still a formal response is awaited from the government. In the absence of any definite sign of statutory reform, family lawyers and individuals who are contemplating marriage have no choice but to defer to case law. So, Radmacher aside, what do the recent reported cases say?

Recent Case Law

A summary of some recent key authorities is set out below:

• KA v MA (Prenuptial Agreement – Needs) [2018] EWHC 499(Fam): This case concerned a couple who had both been married previously. They were in their mid-50’s at the time of the marriage and had 1 child together. The husband was clear that he would not re-marry without a pre-nuptial agreement. The agreement was signed 3 weeks prior to the marriage. At the time of the agreement, the husband had assets worth £33m. The agreement provided for the wife to receive a lump sum of £600k, plus spousal maintenance (which would be index-linked). The wife was advised not to sign the agreement but chose to do so because she felt the “bargaining powers were all on her husband’s side”. The Court ultimately awarded the wife a lump sum of £2.73m on a need’s basis.

• Ipekci v McConnell [2019] EWFC 19: This case featured a wealthy wife, who was the heiress to the Avon cosmetics business. The wife was a beneficiary to various family trusts with a value of at least $65m. The husband was employed as a hotel concierge. He earned $35,000 per annum and essentially had no capital. The agreement provided for the husband to receive a lump sum representing 50% of the increase in value of 3 properties owned by the wife. However, at the time of separation the 3 properties in question had not increased in value and so the nuptial agreement provided no award to the husband. The parties lived primarily in New York, and the agreement was defective under New York law. The Court ruled that the agreement was “wholly unfair” and provided the husband with a needs-based award of £1.3m.

• NM v PM [2024] EWFC 199 (B): The husband was a solicitor and the wife was a barrister. The parties signed a nuptial agreement the day before their wedding. They drafted the agreement themselves and chose not to seek advice. At the time of separation, the wife argued that some of the husband’s properties had been “converted” into matrimonial property. She also argued that the nuptial agreement should not be upheld because it did not meet her needs. The wife’s case was rejected and the nuptial agreement was upheld, resulting in a 65/35 division of the assets in the husband’s favour.

• Entwistle v Helliwell [2025] EWCA Civ 1055: A widely reported case featuring a wife with assets of c. £60m - £70m and a husband with assets of c. £850k. The parties signed a “drop-hands” agreement on the morning of their wedding. Following the separation, the husband sought to depart from the agreement; he initially sought an award of £10m. In the first instance, the judge was critical of the husband’s assessment of his needs. The agreement was largely upheld, save that the husband was granted a lump sum of £400k on a “needs” basis. The husband appealed the decision because the wife had understated her assets in the nuptial agreement by almost £50m. The appeal was allowed, and the husband’s case will be re-assessed afresh with reference to Section 25 of the Matrimonial Causes Act 1973.

• FO v PN [2025] EWFC 327 (B): In this case, there was a 27-year age difference between the parties. At the time of separation, the asset pot was worth £19m. The parties signed a nuptial agreement in 2012 which would have provided the wife with 50% of the value of 1 of the husband’s properties (worth €2.5m at the time of the agreement). The parties later entered into a Deed of Revocation (at the wife’s request) which provided that the assets would be shared equally. The marriage broke down shortly thereafter. The husband argued that the Deed of Revocation was part of a “carefully orchestrated plan” on the wife’s part. His argument was rejected by the Court. The pre-nuptial agreement was disregarded in favour of the Deed of Revocation.

In most of these cases, the Court ultimately made an award which surpassed the terms of the original nuptial agreement. Equally, most of these cases featured nuptial agreements which did not fully satisfy the criteria set out in Radmacher / The Law Commission report; and yet the final award still paled in comparison to what the financially weaker party would have received if the nuptial agreement did not exist.

Conclusion

Whilst the legal status of nuptial agreements is far from being crystal clear, the existence of these agreements will often play a significant role in influencing the outcome of a case (even if they are not upheld to the letter). While statutory reform is awaited, parties entering into a nuptial agreement should continue to ensure that the criteria set out in Radmacher / The Law Commission report are satisfied, to give their agreement the best possible chance of being upheld.