Part 1 – How do the court consider the validity of any nuptial agreement?
Prenuptial and postnuptial agreements are becoming increasingly relevant in England and Wales, with more cases finding that the agreements are valid and enforceable. In the past Courts were hesitant about nuptial agreements, often dismissing them. Conversely, they are now a reality of modern family law and the institution of marriage itself.
This seismic shift follows the 8 to 1 majority in the Supreme Court case of Radmacher v Granatino [2010] UKSC 42 (‘Radmacher’), which set out a new way of thinking when considering either a prenuptial or postnuptial agreement.
To start, we should all be familiar with the ‘prenup’, which, given its full title ‘prenuptial agreement’ means pre-marriage or ante-marriage agreement, so it must be signed before the marriage. Alternatively, a ‘postnup’ or ‘postnuptial agreement’ is signed after the marriage.
The Supreme Court agreed with Wilson LJ that there is no material difference between a prenuptial or postnuptial agreement. [paragraph 57] Radmacher.
When a Court is presented with a prenuptial or postnuptial agreement, there are no set rules on how to assess the validity of the agreement:
“This will necessarily depend upon the facts of the particular case, and it would not be desirable to lay down rules that would fetter the flexibility that the court requires to reach a fair result. There is, however, some guidance that we believe that it is safe to give directed to the situation where there are no tainting circumstances attending the conclusion of the agreement.” [paragraph 76] Radmacher.
Courts therefore have unfettered flexibility on how they assess an agreement’s validity, but they do have guidance on how to undertake that process and the weight to be attribute to any agreement. This can be boiled down to 2 main headers:
1 – Did each party enter into the agreement of their own free will?
This is viewed in the whole, and is something determined very much on a case-by-case basis.
There was a helpful summary by Lord Phillips of Worth Matravers who said “If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, both the husband and wife must enter into it of their own free will, without undue influence or pressure, and informed of its implications.” [paragraph 68] Radmacher. This shows that courts will take a ‘big picture’ view of the agreement, and although the second limb can undermine any agreement, the Court will also look into other factors.
This was expanded upon by Mrs Justice Roberts in KA v MA (Prenuptial Agreement: Needs) [2018] EWHC 499 (Fam) “The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way.” [paragraph 72]
2 – Was there any undue influence, pressure, duress, fraud, or misrepresentation?
One of the Courts’ main concerns is the very formation of any nuptial agreement, the background, the circumstances and everyone’s understanding. This is particularly poignant for the party who may be signing to their detriment, so the Court will commonly ask itself:
- Was there any duress, undue influence or exploitation?
- Was there full and frank financial disclosure?
- Was there independent legal advice?
When considering duress, undue influence or exploitation, an example can be found in KA v MA (Prenuptial Agreement: Needs) [2018] EWHC 499 (Fam). In this case concerned were raised that the wife had been under pressure to sign the agreement, as it was alleged that the husband threatened to cancel the wedding. Although the setting aside of the agreement was ultimately not due to this factor, the case highlights the Courts’ dim view of any undue influence or exploitation.
Full and frank financial disclosure is a pivotal consideration for the Court; this is made very clear in Helliwell v Entwistle [2025] EWCA Civ 1055. The Court found the wife had deliberately and fraudulently failed to disclose the majority of her assets. The Court found that a party cannot be said to have understood the implications of the agreement without accurate information about the other’s financial position.
In the judgment Courts have been given insightful guidance as to how they should proceed if misrepresentation is found. Lady Justice King said, ‘In my judgment, these principles apply to a pre-nuptial agreement where a party has been guilty of fraudulent non-disclosure or fraudulent misrepresentation. If the misrepresentation was intended to cause the representee to enter into the agreement, the representor will have the burden of rebutting a strong evidential presumption that the misrepresentation played a material part in the decision of the innocent party to enter into the agreement: rebutting that presumption will require clear and cogent evidence.” [paragraph 101] and ‘Accordingly, in my judgment had the judge properly addressed Stage 1, he would inevitably have concluded that the deliberate decision by the wife not to disclose her business assets and her interest in her mother’s house amounted to fraudulent non-disclosure which vitiates the agreement.’[Paragraph 121]
Then there is the question as to legal advice, this can be best summed up in Radmacher “Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party’s assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end” [paragraph 69 ]. It is clear that the Courts’ view is that legal advice is desirable, and it goes without saying that when signing an agreement, such as a nuptial agreement, it is recommended. But it is not a determinative factor in the weight a Court will attribute to a nuptial agreement. As long as the signee has all the facts in front of them, and understands everything in front of them, the Court may then still give weight to the agreement.
Conclusion
To best summarise the principles set down in Radmacher v Granatino [2010] UKSC 42, we can turn to the Supreme Court’s endorsement of the Board’s suggestion in MacLeod v MacLeod [2010] 1 AC 298:
“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 not be fair to hold the parties to their agreement” [paragraph 75]
This is not the end the story, like how a great writer ends their book with a cliff hanger or ‘and then they woke up”. There is the ever-present Section 25 of the Matrimonial Causes Act 1973, which means even the best nuptial agreement entered into of free will, full and frank disclosure and comprehensive legal advice cannot be allowed to prejudice the reasonable requirements of fairness, in particular in respect of any children of the family. Simply put, the Court’s jurisdiction is not ousted by any existence of a nuptial agreement. That subject will be considered fully in Part 2.
Author: Lewis Alexander Colbourne
Enquiries about when Mr Colbourne will be available to accept instructions can be dealt with by emailing his clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
Radmacher v Granatino [2010] UKSC 42 (‘Radmacher’)
KA v MA (Prenuptial Agreement: Needs) [2018] EWHC 499 (Fam)
Helliwell v Entwistle [2025] EWCA Civ 1055
MacLeod v MacLeod [2010] 1 AC 298