It is over fifteen years since the seminal case of Radmacher v Granatino which changed the English legal landscape on Pre-Nups forever. Today, if your Pre-Nup is procedurally and substantially fair you should expect to be stuck with it.
What Is a Pre-Nup?
A Pre-Nup is a written agreement entered into by a couple before their marriage or civil partnership. It sets out how they wish their assets, income and financial responsibilities to be divided if the relationship ends. Where such agreements are entered into during the marriage they are referred to as “Mid-Nups” or “Post-Nups” but they are ostensibly the same thing.
Pre-Nups are tailor made to the couple entering into them and under English and Welsh law, they can address a wide range of financial matters, including property ownership, savings, investments, business interests, inheritance, pensions and debts. They are not a prediction that the marriage will fail just a planning tool to set out what this specific couple would like to happen in the event that it does.
Are Pre-Nups Legally Binding in England and Wales?
Pre-Nups are not automatically legally binding in England and Wales like commercial contracts. However, following the landmark Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, courts will give a Pre-Nups decisive weight provided certain conditions are met.
The Supreme Court (the House of Lords as it then was) held that the court should give effect to a Pre-Nup that each party freely enters into 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 Law Commission’s 2014 report, Matrimonial Property, Needs and Agreements, recommended that qualifying nuptial agreements should become legally binding provided they meet specific safeguards, including independent legal advice, full disclosure and a minimum 28-day period before the wedding. Although these recommendations have not yet been enacted into statute, they are widely regarded as best practice and influence how courts assess Pre-Nups.
The Law Commission’s December 2024 scoping report on financial remedies confirmed that the current law does not provide a cohesive framework for divorcing couples and that reform of nuptial agreements remains under active consideration.
The Radmacher v Granatino Case: Why It Matters
The Supreme Court decision in Radmacher v Granatino is the leading authority on Pre-Nups in England and Wales. Payne Hicks Beach acted in this case, which fundamentally changed the approach of English courts to nuptial agreements.
Before Radmacher, Pre-Nups were widely considered unenforceable in England and Wales, with courts treating them as contrary to public policy. The Supreme Court’s ruling established that a Pre-Nuptial should be given decisive weight where it was entered into freely, with full appreciation of its implications, unless it would be unfair to enforce it.
The case involved a German heiress and her French husband, who had signed a Pre-Nup in Germany before marrying in London. The Supreme Court upheld the agreement, substantially reducing the husband’s financial award and confirming that properly constructed Pre-Nups carry real legal significance.
Since Radmacher, English courts have consistently shown a willingness to uphold Pre-Nups that satisfy the requirements of free will, informed decision-making, and fairness. For high-net-worth couples, this provides meaningful reassurance that a carefully drafted agreement will be respected.
Why Do High Net Worth Couples Benefit Most from Pre-Nups?
English law treats marriage as a financial partnership. On divorce, the court has wide discretion under section 25 of the Matrimonial Causes Act 1973 to redistribute assets in a way it considers fair. The starting point is what is made during the marriage is divided equally but without a Pre-Nup, assets accumulated before the relationship, inherited wealth, and business interests could all be treated as part of the pot available for division.
For high-net-worth couples, this can have significant consequences. A Pre-Nup allows couples, rather than the court, to decide between them what is shared and what remains separate, providing clarity and protection across a range of asset classes for example:
- Inheritance and family wealth: Ring-fencing assets passed down through generations so that they remain within the family.
- Property portfolios: Clarifying ownership of residential and investment properties acquired before the marriage.
- Business interests and partnership shares: Protecting the value of private equity, company shares, start-ups and professional partnerships from claims on divorce.
- Trust assets: Preserving the integrity of family trusts and long-standing financial structures.
- Pensions and long-term investments: Defining how retirement savings and investment portfolios should be treated.
Without planning, these assets can become the subject of prolonged and costly litigation. A Pre-Nup provides a framework agreed in calmer times that can prevent disputes later.
When and how should you first raise that you would like a Pre-Nup?
When
There is unlikely to be a “right” time to raise the issue of a Pre-Nup but the earlier the better. One of the key requirements for a Pre-Nup to carry weight is that neither party was under duress when they agreed to it. A Valentine’s Day proposal that is tied to financial terms or a last minute morning of the wedding agreement witnessed by the bride’s hair and make up team could later be argued to have placed the other party under emotional pressure, potentially undermining the enforceability of the agreement.
The Law Commission’s recommended safeguards include a minimum 28-day period between signing a Pre-Nup and the wedding ceremony. This cooling-off period is intended to ensure neither party feels rushed or pressured. It also has the added benefit that couples can get on with the much more fund task of planning the actual wedding.
At Payne Hicks Beach, we routinely advise clients to begin the detailed Pre-Nup discussions at least three to six months before the intended wedding date. This allows adequate time for both parties to obtain independent legal advice, exchange financial disclosure and negotiate terms without time pressure. In reality, the easiest Pre-Nups to agree are those where both parties have been aware that a Pre-Nup was on the cards from earlier on in the relationship and in advance of any proposal.
How
Many clients worry that raising the subject of a Pre-Nup will be seen as distrustful or unromantic. In practice, the manner in which the conversation is handled matters far more than the subject itself.
- Explain your reasoning. A Pre-Nup is often motivated by family responsibility, existing business structures or generational planning, not by a lack of trust.
- Emphasise fairness. A good Pre-Nup protects both partners, not just one. It should reflect a fair balance of interests.
- Invite independent advice. Encouraging your partner to instruct their own solicitor fosters equality and demonstrates respect for their position.
The conversation is best framed as a shared exercise in planning for the future. Couples who approach it collaboratively often find that the process strengthens rather than undermines their relationship. If you can’t have frank conversations about money, should you really be getting married?
Why Instruct Payne Hicks Beach for Your Pre-Nup?
Payne Hicks Beach is one of London’s leading private client law firms with a distinguished family law department recognised in the Legal 500 and Chambers and Partners. Our team has specific expertise in advising high-net-worth and ultra-high-net-worth individuals on Pre-Nups, financial settlements and complex asset protection.
Our involvement in Radmacher v Granatino provides direct insight into the principles governing how courts assess Pre-Nups. We bring that understanding to every agreement we draft, ensuring our clients’ interests are protected within a framework that is both fair and enforceable.
We advise on Pre-Nups involving international elements, family trusts, business interests, inherited wealth and complex financial structures. Each agreement is bespoke and tailored to the couple’s specific circumstances, reflecting both their current position and their plans for the future.
Frequently Asked Questions About Pre-Nups
1. Will asking for a Pre-Nup ruin my proposal?
No. Propose on Valentine’s Day (or whenever feels right!) and keep it separate to your conversation about a Pre-Nup. The earlier in a relationship a Pre-Nup is raised the better and before a proposal is even better. This avoids emotional confusion and ensures neither party feels pressured.
2. Are Pre-Nups legally binding in the UK?Pre-Nups are not automatically legally binding in England and Wales. However, since the Supreme Court decision in Radmacher v Granatino [2010], courts give them decisive weight where the agreement was entered into freely, with full understanding and independent legal advice, and where the terms are not fundamentally unfair.
3. How far in advance should I start the Pre-Nup process?
The earlier the better and we recommend beginning the process at least three to six months before the wedding. The Law Commission has recommended a minimum 28-day period between signing and the ceremony. Starting early allows time for financial disclosure, independent legal advice and thoughtful negotiation without time pressure.
4. What happens if we do not have a Pre-Nup?
Without a Pre-Nup, the court has broad discretion under section 25 of the Matrimonial Causes Act 1973 to divide assets as it considers fair. This could include assets you brought into the marriage, inherited wealth and business interests. A Pre-Nup provides a framework that limits this uncertainty.
5. Can a Pre-Nup be changed or entered into after the wedding?
Absolutely. An existing Pre-Nup can be reviewed and updated at any time during the marriage. Similarly, an entirely new Mid or Post-Nup can be entered into during the marriage, at any time before separation.
6. Does my partner need their own solicitor?
Yes. For a Pre-Nup to carry maximum weight with the court, both parties should receive independent legal advice from separate solicitors. This demonstrates that each party understood the terms and entered into the agreement voluntarily. Often the financially stronger party offers to meet the legal fees of their partner and this should not affect the validity of the agreement.
7. How much does a Pre-Nup cost?
The cost varies depending on the complexity of the couple’s financial arrangements and the length of negotiations. For high-net-worth individuals with business interests, trusts or international assets, the process is naturally more involved. We provide a clear cost estimate at the outset. Speak to our family law team for a confidential discussion.
8. What did the Radmacher v Granatino case decide?
The Supreme Court held that English courts should give effect to a Pre-Nup freely entered into by each party with full appreciation of its implications, unless enforcing it would be unfair. Payne Hicks Beach acted in this landmark case, which transformed the legal standing of Pre-Nups in England and Wales.
A Thoughtful Pre-Nup Should Not Ruin Your Proposal
A Valentine’s Day proposal should be memorable for all the right reasons. A Pre-Nup, handled with care and expert legal guidance, does not threaten that moment. It supports it.
For high net worth couples, the combination of clarity, fairness and professional planning can form the foundation of a strong and confident marriage. A Pre-Nup, far from diminishing the celebration, ensures that love and financial security can coexist with trust and integrity.
For further information, please contact Camellia Buckmaster. Alternatively, please reach out to your usual contact in the Family Department or telephone 020 7465 4397.
