Radley v Radley Revisited: What Courts Actually Do With Prenups in England and Wales

Ask most people what they know about prenuptial agreements and you will hear one of two things: that they are 'not worth the paper they're written on' in this country, or that they are iron-clad documents that will protect every asset you own. Both are wrong.

The truth sits somewhere in the middle, and it has sat there since the Supreme Court's decision in Radmacher v Granatino in 2010. If you are considering a prenup — or being asked to sign one — understanding where that middle ground lies is the difference between a document that matters and one that gathers dust.

The Legal Position: Persuasive, Not Binding

Unlike many US states, England and Wales do not recognise prenuptial agreements as automatically enforceable contracts. No statute makes them binding, and Parliament has repeatedly declined to change that.

What Radmacher established instead is a principle: courts 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 it would not be fair to hold the parties to it.

That fairness caveat is where most arguments are won and lost. A prenup is best understood not as a shield but as evidence — powerful evidence — of what both of you intended when you married. If your intentions were recorded clearly, with proper advice, and life has not rendered them absurd, a court will very often follow them.

The Ingredients of a Prenup That Holds

Over more than a decade of post-Radmacher case law, a fairly reliable checklist has emerged. A well-drafted agreement will have:

• Independent legal advice for both parties. Not one solicitor 'overseeing' things — each person needs their own representative.
• Full financial disclosure. Both sides must know what the other owns, earns, and owes. A prenup built on partial disclosure is built on sand.
• Time before the wedding. The guidance suggests the agreement should be signed at least 28 days before the ceremony. An agreement thrust across the table on the eve of the hen do invites the argument that one party was under duress.
• No undue pressure. 'Sign this or the wedding is off' is the classic fact pattern that unravels an otherwise sound agreement.
• Fairness on needs. The agreement cannot leave one spouse unable to house themselves or meet the reasonable needs of any children. This is the single most common reason courts depart from prenups.

Meeting Needs and the Children Question

It is worth pausing on that last point, because it trips up the most prenups in practice. The court's first loyalty in any financial remedy case is to any children of the family. A prenup can allocate wealth however you like between two childless adults; it cannot contract away a child's right to be properly provided for.

Nor can it ignore a dramatic change in circumstances. If one spouse gives up a career to raise children, or one of you becomes seriously ill, or the business you protected goes on to be worth fifty times more than anyone disclosed at the time — a court will ask whether holding both parties to the original bargain is still fair. Sometimes it will be. Often, the agreement will need to flex.

Good drafting anticipates this. Review clauses, provisions that increase one party's entitlement with the length of the marriage or the arrival of children, and 'lifestyle contribution' adjustments all make an agreement more resilient, not less.

What Prenups Are Genuinely Good At

Where prenups earn their keep is in ring-fencing pre-acquired and non-matrimonial property: assets built or inherited before the marriage, a business founded before you met, a property purchased with inherited funds, or wealth that one family expects to pass down.

The courts already distinguish between 'matrimonial' and 'non-matrimonial' property, but that distinction blurs over time. Money earned during the marriage, the family home, and assets that have been 'mingled' tend to be shared. A prenup draws a bright line that might otherwise take years of litigation to establish.

If you expect an inheritance, hold shares in a family company, or own a home before the marriage, a prenup is not cynicism. It is record-keeping.

The Postnup: The Same Logic, Later

You do not have to be engaged to put an agreement in place. Postnuptial agreements — signed after the wedding — are treated under very similar principles and are often easier to make fair, because neither party is under wedding-day pressure and both have had time to see the finances in practice.

They are also useful for refreshing an older prenup: after ten years of marriage, two children and a house move, an agreement drafted in your twenties may no longer reflect reality. Reviewing it is far cheaper than litigating it.

A Practical Word

If you are thinking about a prenup, start the conversation early — ideally a year before any wedding date is set. Give both of you time to take advice, disclose fully, and negotiate without a countdown clock running.

And if you already have an agreement gathering in a drawer, it may be worth a review. The law has moved on since 2010, and so have most people's lives.

At Infinity Legal, we advise on both sides of the table — drafting agreements that stand up, and reviewing agreements you have been asked to sign. Either way, the earlier you start, the stronger the document.

This article is general information and not legal advice. If you would like to discuss your own circumstances, please get in touch.