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This briefing paper deals with the law in England and Wales except where specifically stated.

What is a pre-nuptial agreement?

A pre-nuptial (or pre-marital) agreement is an agreement made by a couple before they marry or enter into a civil partnership, which sets out how they wish their assets to be divided if they should divorce or have their civil partnership dissolved.

What is the legal status of pre-nuptial agreements?

Pre-nuptial agreements are not automatically enforceable in courts in England and Wales.

Traditionally, pre-nuptial agreements were unenforceable as being against public policy. However, courts then became willing to attach weight to some pre-nuptial agreements, as one of the relevant circumstances to be taken into account when deciding the division of assets on divorce or dissolution. 

In a landmark ruling in 2010, the Supreme Court held that courts should give effect to a pre-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. The ruling does not make pre-nuptial agreements binding in all cases; the fairness of upholding any particular agreement will be considered by the court on a case by case basis.  However, some pre-nuptial agreements will now have effect in the absence of circumstances which would make this unfair. 

Law Commission recommendation for enforceable agreements

In February 2014, following consultation, the Law Commission published its final report, Matrimonial Property, Needs and Agreements. Among other things, it recommended the introduction of “qualifying nuptial agreements” as enforceable contracts which would enable couples to make binding arrangements for the financial consequences of divorce or dissolution.  These agreements, which would have to meet certain requirements, would not be subject to the court’s assessment of fairness.   Couples would not be able to contract out of meeting the financial needs of each other and of any children.  The Law Commission’s report includes a draft Bill. 

In January 2017, the Government said that it was considering the Law Commission’s recommendation on qualifying nuptial agreements as part of a wider consideration of private family law reforms and would respond in due course.

Private Member’s Bill

In the 2016-17 Parliamentary session, Baroness Deech (Crossbench) introduced a Private Member’s Bill intended to make provision, among other things, for binding pre‑nuptial and post-nuptial agreements, subject to specified requirements. The Bill had its Second Reading but did not make any further progress.

The position in Scotland

In Scotland, pre-nuptial agreements are generally regarded as being enforceable and not contrary to public policy.

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