Pre-Nups and Post-Nups: When They Work, When They Fail

Few documents are as misunderstood as the nuptial agreement. Some believe it is a silver bullet. Others think it is worthless. Both views are wrong.

Pre-nuptial and post-nuptial agreements are not automatically binding in England and Wales. The court retains discretion. That does not mean they are ignored. Properly prepared, they carry substantial weight. Poorly prepared, they unravel quickly.

The first question is fairness. An agreement that leaves one party unable to meet basic needs is unlikely to survive scrutiny. The court will not enforce an arrangement that produces real hardship, however carefully drafted. Needs remain the controlling principle.

Timing matters. A pre-nup signed on the eve of the wedding is vulnerable. Pressure, or the appearance of it, is enough to weaken the agreement. The closer to the ceremony, the greater the risk. Post-nups avoid this problem, which is why they are often more robust.

Disclosure is critical. An agreement made in ignorance is an agreement on sand. Each party must understand the scale of the other’s wealth and liabilities. Partial disclosure invites challenge and usually succeeds.

Independent legal advice is not optional in any meaningful sense. Without it, the court will question whether the weaker party understood what they were giving up. The absence of advice does not guarantee failure, but it significantly increases the risk.

Children change everything. An agreement made before children may become unfair once they arrive. The court will not allow an agreement to prejudice their welfare. That does not mean the agreement is discarded, but it may be adjusted or sidelined.

Length of marriage also matters. What may be fair at year two may look different at year twenty. Agreements that fail to anticipate this reality are easier to undermine.

Where nuptial agreements tend to work is in protecting pre-marital wealth, family businesses, and inherited assets, particularly in shorter marriages and where needs are well provided for. Where they fail is in overreach: attempting to exclude the court entirely, freeze circumstances in time, or impose stark inequality.

The purpose of a nuptial agreement is not to dictate the outcome of a divorce. It is to influence it. Done properly, it narrows the battleground, reduces cost, and injects predictability. Done badly, it creates false confidence and expensive litigation.

In short, nuptial agreements work when they are fair, informed, and realistic. They fail when they are rushed, one-sided, or treated as a box-ticking exercise.

If you have a legal dispute, contact Hunter Lawyers for a free confidential consultation.