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The prenuptial agreement – or 'prenup', for short – has an undeservedly (yet understandably) awkward reputation. But in a legal context, alongside its post-nuptial counterpart, the ‘postnup’, it’s an incredibly useful asset for any married couple. As an aspiring solicitor with a budding interest in family law, this article is the product of some research into the infamous prenup – with the aim of dispelling some common misconceptions around it.

What are prenups?

Prenups are written contractual agreements between couples that dictate what legal rights they acquire upon marriage, alongside the apportioning of their assets in the event of death or divorce. They are useful because they provide an alternative to default marital laws. They’re expensive to draft but can encourage and allow a couple to have a healthy discussion surrounding their assets, while maintaining some control and expectation over the circumstances should something go wrong.

In the United Kingdom, prenups came into effect after the 2010 case of Radmacher v Granatino, in which the Supreme Court stated that the old law that prenups (and postnups) were 'contrary to public policy' was obsolete. This case signified a turning point in how UK courts would view and respond to prenups, now giving them more weight in determining the distribution of assets during divorce cases.

Precedents and templates exist for couples to use to assist in resolving matters and drafting an agreement without the aid of a solicitor.

What are postnups?

Like their counterparts, postnups also consist of written contracts that determine the distribution of a couples' money and property upon divorce or death. The difference between the two is that, as the name suggests, prenups are written prior to the marriage, whereas postnups are written after.

Effect of prenups and postnups

In Radmacher v Granatino, the court noted that if an agreement is to be considered valid, parties must enter into it of their own free will, without undue influence, and be aware of its consequences. To do so, parties have to be fully informed about the implications of their decisions. Legal advice is not always necessary, but would certainly be helpful given the nature of the agreement.

The only time a court would disregard an agreement (particularly a pre-nuptial agreement) is if it would prejudice the requirements of any children involved, or if the couple's circumstances had changed so dramatically that it could not have been foreseen at the time of entering the agreement, as various pieces of case law have established.

For those of you who have studied, or are studying contract law (I can't say I envy you), you might remember some of the general principles of contract law – offer, acceptance, intention to create legal relations and consideration. Prenups and postnups must follow these principles to be considered valid.

Advantages and disadvantages

Broadly speaking, the advantages and disadvantages of prenups and postnups are similar. While both agreements can be emotionally and financially draining, and don’t always account for future changes, they can equally reduce the risk of conflicts later down the line and offer protection of assets. They also allow couples to have conversations about their different positions going into their marriage (and beyond), which can allow for practical and necessary, albeit uncomfortable, discussions.

Potential updates and reform

The Law Commission published a report on matrimonial agreements in 2014 introducing the concept of a 'qualifying nuptial agreement'. This would allow couples to contract out of sharing part of financial provision, but not out of providing for their children or each other's needs. This qualifying nuptial agreement would’ve need to be made by deed, over 28 days before the ceremony, and would require both partners to receive independent legal advice. The report also mentions a Nuptial Agreements Bill, which was intended to introduce the qualifying nuptial agreement. However, this Bill was never subsequently introduced by the Government and, as such, the current law on prenups and postnups still stands.

If you have an interest in family law, I hope you found this article helpful and that you’ve learnt a bit more about prenups!