Are prenups legally binding in England?

Question

I have read that prenup agreements are not legally binding in England. Is this correct?

Answer 1

Before 2010 pre-nuptial agreements were not generally considered legally binding in England. In 2010, this position changed following the Supreme Court case of Radmacher v Granatino.

Pre-nuptial agreements can now be enforced by the courts under s 25 of the Matrimonial Causes Act ("MCA") 1973 so long as the three-stage Radmacher test is met (see below) and it is considered fair to do so, keeping in mind the interests of any child of the family.

The Matrimonial Causes Act 1973

• Section 25(1) of the MCA: the court prioritises the welfare of any minor children. If enforcing a prenup would negatively affect the children's welfare, the court will likely override it.

• Section 25(2)(a) and (b) of the MCA: the court must consider each party's financial needs, resources, and earning capacity. If a prenup does not adequately provide for one party's needs, it is unlikely to be upheld in full.

• Section 25(2)(c) of the MCA: if the terms of the prenup are inconsistent with the lifestyle the parties enjoyed during the marriage, the court may depart from its terms.

• Section 25(2)(d) of the MCA: a prenup might hold less weight in a long marriage, especially if circumstances have significantly changed since it was signed.

• Section 25(2)(f) of the MCA: non-financial contributions, such as raising children or homemaking, must also be accounted for, even if the prenup does not recognise them.

With the above considerations in mind, Radmacher holds that the courts will give effect to a pre-nuptial agreement that satisfies the following three-stage test (mentioned above).

The three-stage Radmacher test 2010

A pre-nuptial agreement will only be upheld if:

1. it is freely entered into by each party;

2. with a full appreciation of its implications; and

3. it is fair to hold the parties to their agreement.

The Law Commission has accepted the decision in Radmacher and recommended the creation of a qualifying nuptial agreement regime, although this has not happened as of yet.

In summary: Under the right conditions, pre-nuptial agreements can be enforced. However, there is certainly no automatic right for them to be enforced on the sole basis that both parties have signed it. The above provides a good understanding of the explicit law. To interpret this for specific situations, there is further guidance that can be found in many of the subsequent court decisions after the 2010 case.