A prenuptial agreement is one of the most effective ways to protect your assets and establish financial clarity before marriage, but its enforceability depends on more than simply signing on the dotted line. This article explores what the law requires, when a prenup might be challenged, and how couples can ensure their agreement remains fair, valid, and future-proof.
How does a prenup work?
A prenup can address the specific needs of the parties involved; and can protect a wide variety of financial interests and assets in the event of a divorce (as well as death of a spouse).
This can include:
- How the ownership of property and businesses should be divided.
- How inheritance or assets held be either party prior to the marriage should be dealt with should they divorce.
- How gifts from family members can be protected.
Typically, the agreement will factor in a regular review clause, to ensure that the agreement continues to meet the parties’ needs and to address the status of the agreement after a significant life event, such as the birth of a child.
Does a prenuptial agreement require full financial disclosure to be valid?
The recent judgment handed down by the Court of Appeal in Helliwell v Entwistle [2025] EWCA Civ 1055 examines the importance of full and frank financial disclosure when entering into a prenuptial agreement.
The starting point is to consider the Supreme Court decision in Radmacher v Granatino [2010], which confirms that the prenuptial agreement should be entered into freely by each party with “a full appreciation of its implications unless in the circumstances it would not be fair to hold the parties to the agreement”.
There must therefore be a certain level of financial disclosure to enable both spouses to have a full appreciation of their respective financial positions and understand the implications of them entering into a prenuptial agreement.
If the agreement purports that both parties have fully and frankly disclosed their financial positions, when in fact one party has fraudulently represented the extent of their financial position, then this may render the agreement invalid.
Can it protect property held within a family trust?
Yes, a prenup can protect property held within a family trust. It can be used to safeguard a trust in the event of any dispute within the potential future divorce proceedings.
However, such agreements do not oust the jurisdiction of the courts, and it remains open to the Court to choose to divide a couple’s assets in a manner that differs from the agreement. Particularly if there is a flow of benefit from the trust to the spouse during the marriage, the courts may decide that the trust should be considered as part of the financial settlement.
What happens if your financial circumstances change?
If they change significantly, your prenuptial agreement may no longer be fair and could be challenged in court.
In these circumstances, you can update the prenup by creating a postnuptial agreement that replaces the original, or you can have your original agreement reviewed.
How often should an agreement be reviewed or updated?
A prenuptial agreement should be reviewed periodically and updated where necessary to ensure it remains fair and reflects current circumstances.
You should aim for a review every three to five years, or when there has been a significant life event (birth or adoption of a child, inheritance received, bankruptcy).
Can it limit or prevent claims for spousal maintenance?
A prenup can provide that one or both parties are either limited or prevented from making claims for spousal maintenance. It can also restrict the amount and length of a spousal maintenance order.
However, as in every case, such agreements do not oust the jurisdiction of the courts, and the courts will take the existence of a prenuptial agreement into account as part of all the circumstances of the case. It remains open to a Court to depart from the agreement if it does not provide for the needs of the parties.
What can I do if my future spouse refuses to sign a prenup?
You cannot force your spouse to sign a prenuptial agreement as each party must enter into the agreement of their own free will.
You could consider involving a neutral third party i.e. a mediator who can explain the purpose of the agreement and the fairness of it. If your future spouse refuses to sign the agreement because they feel it is unfair, then you can consider amending the terms of the agreement.
How should you approach discussing an agreement without damaging your relationship?
Discussing a prenuptial agreement can be emotionally charged, but it doesn’t have to damage your relationship if you frame it in the right way. You should explain your motivations for wanting a prenup, focusing on why it matters to you. Emphasise fairness and mutual benefit, and how it can protect the both of you.
Contact our family solicitors
A prenup can provide certainty, transparency, and protection for both parties before you take one of life’s biggest steps, but only when it’s created with full financial disclosure, expert advice, and fairness at its core.
With proper planning, it can offer peace of mind while preserving flexibility for life’s inevitable changes.
Our family law specialists advise clients on the drafting, negotiation, and review of prenuptial and postnuptial agreements tailored to their unique circumstances. If you are considering a prenup, or would like an existing agreement reviewed, our team can provide you with comprehensive support.
Key Contact
Simon Magner Mawdsley
Partner | Head of Family Law
Described by clients as "an excellent listener, open and engaging", "exceptional", "reassuring" and "insightful", Simon acts for a range of clients in all aspects of relationship breakdowns including divorce, resolution of financial matters, civil partnerships, cohabitation disputes, pre- and post-marital agreements, injunctions, and children matters.
