Pre & post-nuptial agreements: Common questions family lawyers get asked
Many clients who come to us about nuptial agreements are already married. Some didn't get around to a prenup before the wedding. Others want to revisit their financial arrangements after a significant change in circumstances. Some hadn't realised it was even possible to make a post-nuptial agreement after the wedding.
A post-nuptial agreement can offer a level of financial clarity that many couples find genuinely useful. Below, we’ve answered the questions we’re asked most often, covering both pre and post-nuptial agreements, since the legal principles that apply to each are closely related.
This post covers the law as it applies in England and Wales (correct at May 2026).
What is the difference between pre-nuptial agreements and post-nuptial agreements?
A pre-nuptial agreement is entered into before the wedding. However, post-nuptial agreements happen after the marriage has taken place. They serve a similar purpose and courts apply a similar approach to both, though the context differs.
Post-nuptial agreements explained
Clients seek post-nuptial agreements for a range of reasons. Some couples decide they want financial clarity after they are already married and simply did not get around to a prenup beforehand. Others enter into a postnup following a significant change in circumstances during the marriage. This could be one party receiving a substantial inheritance, starting a business, leaving employment to raise children, or the couple reconciling after a period of difficulty. A postnup can also be a sensible way of updating an existing prenup if your circumstances have changed significantly since you first signed it.
Cohabiting couples
One point worth noting: nuptial agreements are for married couples and civil partners. If you are cohabiting but not planning to marry, a different arrangement applies. A cohabitation agreement can protect your assets and our guide to cohabitation and the law is a good starting point on this topic.
What does getting a post-nuptial agreement actually involve?
This is where many people have a gap in their understanding, because the process is rarely explained clearly. Here’s the step-by-step process for obtaining a postnuptial agreement:
1. Initial consultation & discussion
Both parties will need to instruct their own lawyer. You cannot use the same lawyer, as the requirement for independent legal advice means exactly that. Each lawyer's job is to make sure their client understands what they are agreeing to and whether the terms are fair for them.
2. Full financial disclosure
Before the agreement is finalised, both parties will need to provide full financial disclosure, setting out their assets, liabilities, income and financial expectations. This is not optional. An agreement reached without proper disclosure can be challenged on exactly that basis later on. Any hidden assets can render the agreement invalid.
3. Drafting the post-nuptial agreement
Once both sides have disclosed their financial position, your lawyer will draft the agreement itself. This sets out how you intend to deal with property, savings and debts, and can include provisions around spousal maintenance in the event of divorce. The document needs to reflect what you have actually discussed and agreed, not just a standard template, which is one reason why the conversations you have with your solicitor at the outset matter.
4. Independent legal advice
The draft then goes to your spouse's lawyer for independent review. This is not a formality. It’s vital to ensure your spouse properly understands what they are signing up to, that the terms are fair to them, and that they are entering into the agreement freely. This step is central to whether a court would give the agreement weight later on if challenged.
5. Negotiation
It is common at this stage for some negotiation to take place. One party may want to adjust a particular term, or their lawyer may flag something that needs rethinking. This is a normal part of the process and not a sign that things are going wrong. The goal is an agreement both parties are genuinely comfortable with, because an agreement that one party later claims was unfair or felt pressured into is significantly more vulnerable to challenge.
6. Signing as a deed
Once the final terms are agreed, the document is signed as a deed by both parties, with independent witnesses present. It is worth keeping a copy somewhere accessible, and worth revisiting the agreement if your circumstances change significantly over time. It is not a document you sign once and set aside forever.
The timing of pre- and post-nuptial agreements
For a pre-nuptial agreement, timing relative to the wedding matters. There is no hard rule in English law, but the Law Commission's proposed reforms suggested a minimum of 28 days before the ceremony, and in practice the further in advance the better. An agreement signed in the days immediately before a wedding may attract scrutiny from a court.
For a post-nuptial agreement, there’s no timing issue, but the same principles around financial disclosure, independent advice and the absence of any pressure to sign apply equally.
After any agreement is signed, it is worth reviewing it if your circumstances change significantly, particularly if you have children, receive an inheritance, or your financial position shifts materially. It is not a document you sign once and set aside.
Are pre-nuptial and post-nuptial agreements legally binding?
Strictly speaking, no. A court in England and Wales is not automatically bound by a nuptial agreement in the way it would be by a contract in other areas of law. However, "not legally binding" does not mean "not worth having."
Following the Supreme Court's decision in Radmacher v Granatino [2010] , courts have given increasing weight to nuptial agreements where certain conditions are met. In broad terms, a court is more likely to uphold an agreement where both parties had independent legal advice before signing, full and frank financial disclosure was made by both sides, the agreement was signed without time pressure, and neither party was coerced into signing.
Where these conditions are met, and where the agreement remains fair at the time of any dispute, a court will give it decisive weight in deciding how to divide finances on divorce and would have to have a very good reason for departing from the terms of the agreement. “A very good reason” will be if the agreement leaves one party in serious financial need.
Do we need a nuptial agreement if we aren't particularly wealthy?
Nuptial agreements are not only for high-net-worth couples, and this is probably the assumption we push back on most often. People seek them for a wide range of reasons that have nothing to do with wealth in the traditional sense. Common situations include protecting an inheritance someone expects to receive during the marriage, ring-fencing assets one party owned before the relationship began, providing clarity where one or both parties have children from a previous relationship, or simply wanting an honest record of where each party stands financially at a particular point in time.
Ask yourself whether the value of what you want to protect is proportionate to the cost of having an agreement properly drafted and independently advised upon. If it is, a post or pre-nuptial agreement is worth serious consideration regardless of your overall financial position.
What can make a nuptial agreement less likely to be upheld?
The robustness of a nuptial agreement is closely tied to how it was put together. Courts are more likely to look past an agreement where it was signed under time pressure, one party did not receive proper independent legal advice, there was incomplete financial disclosure at the time, the agreement was clearly unfair when it was entered into, or circumstances have changed substantially since it was signed, particularly around children.
This is why the process matters as much as the document itself. An agreement drafted carefully, with both parties properly advised and all finances on the table, is in a considerably stronger position than one put together hastily or without proper legal support on both sides.
What goes into a nuptial agreement, and what can't be included?
A nuptial agreement typically sets out how specific assets will be treated in the event of divorce. This might include property owned before the marriage, anticipated inheritances, business interests, savings, and in some cases arrangements around maintenance. It might also include what will happen to assets acquired during the marriage, though this tends to require more careful drafting.
What a nuptial agreement cannot do, in England and Wales, is remove a court's ability to make provision for the financial needs of either party, or for any children of the family. An agreement that attempts to leave one party without adequate financial provision would not be upheld. The court retains a degree of discretion, and agreements that attempt to exclude this entirely are unlikely to fare well.
Will the law on nuptial agreements change?
This question comes up regularly, particularly among clients who have read that prenups and postnups may soon become fully enforceable. The Law Commission recommended reform as long ago as 2014, proposing a new category of "qualifying nuptial agreement" that courts would be bound to follow, provided the procedural safeguards were met and neither party's financial needs were left unmet. Successive governments have not yet acted on those recommendations.
In December 2024, the Law Commission published a further scoping report on financial remedies reform, revisiting the question of nuptial agreements among other things. At the time of writing, it’s unclear how much longer it may be before we get reform in this area. Any couple making decisions now should do so on the basis of the law as it currently stands.
Is a nuptial agreement right for us?
There is no universal answer to this. For some couples, the process of working through a nuptial agreement, with both parties properly advised and all assets on the table, is genuinely valuable regardless of whether they ever need to rely on the document. For others, the cost may not be proportionate to what is being protected.
Most people who come to us expecting a complicated and uncomfortable process are pleasantly surprised. The conversation about finances that a nuptial agreement requires you to have is often one couples should be having anyway. And whatever the outcome, people generally feel better for having had it.
We're always happy to have a no-obligation chat about the way forward. You can find more information about our approach to pre- and post-nuptial agreements on our website or call our friendly team on 020 4579 5360.
Frequently asked questions
Can post-nuptial agreements be used to protect a family business?
Business interests are one of the most common reasons clients come to us about nuptial agreements, and it is an area where having something in writing can make a real difference. A post-nuptial agreement can identify a business interest and set out how it should be treated in the event of divorce. In England and Wales, a business is likely to be considered a matrimonial asset if it grew significantly in value during the marriage, and courts have discretion in how they approach business valuations. An agreement that clearly identifies the business, its value at the point of signing, and the parties' intentions in relation to it gives the court useful context. It will not automatically prevent the business from being taken into account, but as the law currently stands, a properly made agreement is likely to carry significant weight.
Can I get a nuptial agreement if my spouse is from another country?
Yes, though the position is worth understanding clearly. A nuptial agreement made in England and Wales will be assessed by English courts under English law if proceedings take place here. If there is any possibility that divorce proceedings could take place in another jurisdiction, it is important to take legal advice in that country as well, as the approach to nuptial agreements varies significantly between legal systems. International couples may benefit from advice on jurisdiction at an early stage, as the country in which proceedings are issued can affect the financial outcome substantially.
What happens to a nuptial agreement if we have children?
Having children does not automatically invalidate a nuptial agreement, but it is one of the factors a court will consider when deciding how much weight to give it. An agreement made before children arrived may look quite different in practice once the needs of those children are considered. Courts in England and Wales will always retain jurisdiction to make financial provision for children, and no nuptial agreement can override that. It is generally sensible to review an existing agreement after significant changes in your family circumstances, including the arrival of children.
Does a nuptial agreement cover maintenance as well as assets?
A nuptial agreement can include provisions relating to spousal maintenance, setting out whether maintenance will be paid, in what amount, and for how long. Courts retain discretion in this area, and an agreement that attempts to exclude maintenance entirely may not be upheld if it would leave one party in genuine financial need. Maintenance provisions tend to work best where they are reasonable and reflect the parties' actual circumstances at the time of signing, rather than attempting to limit provision as dramatically as possible. Taking independent legal advice on any maintenance clause is particularly important.
