PRENUPTIAL & POSTNUPTIAL AGREEMENTS
Postnuptial Agreements
About Postnuptial Agreements
A postnuptial agreement is a written record, made after you marry, of how your finances should be dealt with if the marriage ends. It is not automatically binding: the court should give effect to an agreement entered into freely by both of you, with a full appreciation of its implications, unless it would not be fair to hold you to it. We draft these agreements and advise on one you have been asked to sign.
Who this is for
- Married couples who made no agreement before the wedding and want one now
- Anyone who has received an inheritance, or started or sold a business, since marrying
- Couples whose prenuptial agreement no longer fits their money, property or children
- A spouse handed an agreement to sign who needs their own advice first
How RakLAW helps
- Explain what weight an agreement signed during a marriage is likely to carry
- Prepare the financial disclosure and attach it as a schedule to the agreement
- Draft terms separating inherited and pre-marital property from what you build up together
- Provide for needs and for any children, so the terms are not unfair when signed
- Complete the agreement as a deed and confirm our advice to you in writing
- Advise on whether a court could later alter it, and update it after a big change
What a Postnuptial Agreement Does
A postnuptial agreement is made after the wedding and records how you and your spouse want your finances dealt with if the marriage ends. Couples ask for one where there was no prenuptial agreement beforehand, where an inheritance or a business has changed the picture, or after a difficult period.
It is not a separation agreement, which records the terms on which a parting couple will live apart: a postnuptial agreement is made while you are still together.
If the marriage ends, the court makes financial orders under the Matrimonial Causes Act 1973. Section 25 governs how it exercises those powers: it must have regard to all the circumstances of the case, first consideration going to the welfare while a minor of any child of the family under 18, and to listed matters including what each of you has and needs, the length of the marriage and your contributions.
Your agreement is one of those circumstances. In Radmacher v Granatino the Supreme Court held that the court is not obliged to give effect to a nuptial agreement, made before or after the wedding, and that the parties cannot by agreement oust its jurisdiction. An agreement may change what the court treats as fair, and in the right case it can be the most compelling factor.
Civil partners use a post-civil partnership agreement, which Schedule 5 to the Civil Partnership Act 2004 treats in the same terms.
The Legal Test the Court Applies
In Radmacher v Granatino the Supreme Court set the test: the court should give effect to a 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. It advanced that test for agreements made before and after a marriage alike.
The first question is how it came to be signed. For full weight both of you must enter into the agreement of your own free will, without undue influence or pressure, and informed of its implications; the court asks whether there was any material lack of disclosure, information or advice, and whether you both intended the agreement to take effect.
The second is whether it is fair to hold you to it now. Fairness has three strands: needs, compensation and sharing. Needs and compensation most readily make an agreement unfair: where one of you would be left in real need while the other has a sufficiency or more, or where one looked after the family while the other built up wealth. Where each of you can meet your needs, it is on sharing that the court is most likely to order what the agreement says.
Signing after the wedding rather than before it cuts both ways. The Supreme Court said weight is given out of respect for individual autonomy, particularly where an agreement addresses existing circumstances rather than only the contingencies of an uncertain future. It also said the change of circumstances test is appropriate for a separation agreement, and true to a lesser extent for an agreement made well on in a marriage.
Maintenance Agreements and the Court's Power
Sections 34 to 36 of the Matrimonial Causes Act 1973 deal with what the Act calls a maintenance agreement: an agreement in writing between the parties to a marriage that governs their rights and liabilities towards one another when living separately, made during the marriage or after it has been dissolved or annulled. A postnuptial agreement can fall inside that definition because you are already married when you sign. A prenuptial agreement is made between people who are not yet parties to a marriage, which is why the Privy Council doubted that the power to alter an agreement reaches one.
Whether those sections reach every postnuptial agreement, or only an agreement made to separate, is unsettled: the Privy Council in MacLeod v MacLeod held that the identical Isle of Man provisions applied to a married couple's deed, and in Radmacher the Supreme Court questioned that and left it undecided. Where they apply:
- A provision purporting to restrict a right to apply to a court for an order containing financial arrangements is void, and the rest of the agreement survives
- The other financial arrangements bind the two of you unless void or unenforceable for another reason, subject to the court's power to alter them
- While the agreement subsists and you are both domiciled or resident in England and Wales, either of you may ask the court to alter it, on a change of circumstances, including one you both foresaw, or because it makes no proper provision for a child of the family
- Nothing in those sections affects the court's power to make such an order in other proceedings, or your right to apply for one
So an agreement can bind the two of you without binding the court. If you both still accept the terms when you separate, we ask the court to approve them as a consent order, which a judge approves if they consider it fair and cannot make before the conditional order. If one of you disputes it, the court weighs it in financial remedy proceedings.
No nuptial agreement may prejudice the reasonable requirements of any children of the family, and an agreement does not stop either of you applying for a child maintenance calculation: a term purporting to restrict that right is void. Child maintenance and child arrangements are handled separately.
Disclosure, Advice and Common Problems
How the agreement came to be signed is the commonest reason its weight is reduced. The court weighs:
- Financial disclosure on both sides, so each of you has the information material to your decision
- Separate legal advice for each of you: the Supreme Court said sound legal advice is obviously desirable
- No duress, fraud or misrepresentation, no undue pressure, and no exploitation of a dominant position
- Your emotional state, the pressures either of you was under, your ages and any earlier marriage
- Terms that provide for needs and read fairly when they are signed
Pressure is the particular risk with an agreement made during a marriage, because what is offered for a signature can be the marriage itself. In NA v MA, which the Supreme Court reviewed in Radmacher, a husband pressed his wife to sign after discovering her affair, insisting she do so if the marriage was to continue; the judge set the agreement aside for undue influence.
The problems we are asked to sort out are usually these: an agreement drafted for one spouse and handed to the other, disclosure that leaves out a shareholding or a pension, and one spouse advised and the other not. We can review an agreement you already have; where one of you or the assets are connected with another country, it must work in two legal systems: see cross-border agreements.
How the Process Works
- Free 15-minute consultation. You tell us what each of you owns and what the agreement is for, and we explain what weight it is likely to carry.
- Disclosure. Both of you set out assets, income, pensions and debts, with valuations where needed, and we prepare the schedule attached to the agreement.
- Terms. We settle what stays separate, what is shared, how the family home is treated, what happens to business assets and pensions on divorce, and how needs and any children are provided for.
- Your spouse's advice. Your spouse instructs their own solicitor, who may propose changes. We can act for one of you only.
- Signing. The agreement is executed as a deed and witnessed, both solicitors confirm their advice in writing, and each of you keeps a copy.
- Review. After a child, an inheritance or a business sale we update the terms.
When Advice Matters Most
Advice matters most where:
- You are being asked to sign to keep the marriage together, or to sign quickly
- One of you has much more than the other, or has given up work to care for children
- A family business, farm or trust is involved and other relatives have an interest
- The agreement is to settle whether either of you would pay spousal maintenance
If you feel pressured into signing, take your own advice first. In immediate danger call 999, and the National Domestic Abuse Helpline is on 0808 2000 247; our domestic abuse and injunctions pages explain the orders a court can make.
If the marriage is already ending, our divorce and separation and financial settlement pages explain the process and how the court divides money without an agreement, and our mediation and out of court options pages set out the routes that avoid court.
How RakLAW Solicitors Can Help
RakLAW Solicitors is authorised and regulated by the Solicitors Regulation Authority, SRA number 8007405, and was founded by solicitor Rakesh Prajapati. Our office is at 42 Shad Thames in Southwark, a short walk from Tower Bridge.
We draft postnuptial agreements, advise on a draft your spouse's solicitor has produced, and advise on the weight an existing agreement would carry if tested. Where you both accept the terms we prepare the order recording them, and where it is disputed we represent you.
A free 15-minute consultation is a sensible place to start. Our family law fees page explains how we charge, and we do not offer legal aid. Making an agreement does not involve the court, so no court fee arises; the GOV.UK court fees page sets out the fees if you later ask the court to make an order.
Frequently asked questions
Is a postnuptial agreement legally binding in England and Wales?
Not automatically. If the marriage ends the court decides financial claims under the Matrimonial Causes Act 1973 and treats the agreement as one of the circumstances of the case. Since Radmacher v Granatino it should give effect to an agreement freely entered into with a full appreciation of its implications, unless it would not be fair to hold you to it.
Is a postnuptial agreement weaker than a prenuptial agreement?
No. The Supreme Court declined to distinguish the two and said the same principles apply to an agreement made after the wedding as to one made before it. It added that respect for a couple's own decision is particularly appropriate where the agreement addresses circumstances that already exist.
Is a postnuptial agreement the same as a separation agreement?
No. A separation agreement records the terms on which a parting couple will live apart. A postnuptial agreement is made while you are still together and looks ahead to a separation that may never happen.
Can a postnuptial agreement replace a prenuptial agreement?
Yes. A later agreement can replace an earlier one, and couples may do this after a child arrives, an inheritance is received or a business is sold. The replacement needs the same care as the original: disclosure on both sides, separate advice, and terms that are fair when signed.
Do we each need our own solicitor?
You should each take your own advice, and we can act for one of you only. Separate advice is not yet a legal requirement, but the court asks whether there was any material lack of disclosure, information or advice, and the Supreme Court called sound legal advice obviously desirable.
Can the court change a postnuptial agreement later?
It can. Where sections 34 to 36 of the 1973 Act apply, either of you may ask the court to alter the agreement, on the ground that circumstances have changed since it was made or that it makes no proper provision for a child of the family. If the marriage ends the court weighs the agreement rather than being bound by it.
Can a postnuptial agreement deal with child maintenance?
It can record what you intend, but it cannot bind the court or the Child Maintenance Service. An agreement does not prevent either of you applying for a maintenance calculation, and a term purporting to restrict that right is void. The welfare of any child of the family under 18 is the court's first consideration.
My spouse wants me to sign to save the marriage. What should I do?
Take your own advice before you sign anything. Pressure of that kind goes to the weight the agreement would carry: undue influence, undue pressure falling short of duress and the exploitation of a dominant position can reduce or remove it. In one case the Supreme Court reviewed, the judge set an agreement aside for undue influence. If you are frightened, the National Domestic Abuse Helpline is on 0808 2000 247, and 999 in immediate danger.
Will a postnuptial agreement protect an inheritance or a business?
That is where these agreements do most of their work. The House of Lords distinguished property one spouse already owns or expects from a third party from the matrimonial property built up during the marriage, and the Supreme Court found nothing inherently unfair in an agreement dealing with the former. The protection is strongest where both of you can still meet your needs.
Is the law on postnuptial agreements about to change?
Possibly. The Government consulted between 5 June and 14 August 2026 on qualifying nuptial agreements, which would be binding where safeguards were met, among them: a valid contract, a deed with a signed statement, material financial disclosure and independent legal advice for each party, with no waiver of disclosure or advice. Even then the proposals would not allow a couple to contract out of meeting each other's financial needs or children's needs, and the court would keep the power to make orders to meet them, though the consultation proposes that where an agreement is challenged on needs those needs be assessed on a narrower basis that excludes discretionary needs. On 28 September 2026 the responses were still being analysed and any legislation follows when parliamentary time allows.
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