As a family lawyer who usually meets couples at less than sparkly moments, I’m here to make a suggestion to couples contemplating their next steps: research and talk about a pre-nup, or its slightly later cousin, the post-nup, at an early stage. Done well, these agreements protect non-marital wealth, offer security and reduce uncertainty. Done badly, or not at all, non-marital wealth is exposed to potential claims.
What is a pre-nup (and a post-nup)?
A prenuptial agreement is a document you both sign before marriage, setting out what would happen financially if you separate. A post-nuptial agreement is the same idea, signed after the wedding. These agreements can cover pre-relationship property, how savings, pensions, or a business are treated, and whether one of you would receive financial support. In England and Wales, they’re not automatically binding through legislation, but numerous high-profile cases over the last 15 years give them significant weight when they’re fair, properly prepared, and each of you has had independent legal advice. A well-drafted pre- or post-nup works.
What happens if we don’t have a pre-nup?
The court applies Matrimonial Causes Act 1973, s.25 – a broad fairness exercise considering income, needs, standard of living, ages, duration of marriage, contributions, disabilities and (rarely) conduct, with first consideration to any children. These criteria are cross-referenced with the couple’s resources, and everything is taken into account. There’s no formula for working out how everything’s divided up. Ultimately, judges have complete discretion to order what they feel is fair. Whilst a distinction will be drawn between matrimonial assets (built up during the marriage) and non-matrimonial assets (such as pre-marital wealth, gifts and inheritances), non-matrimonial assets can still be brought into play where necessary to meet needs and achieve fairness. The point of the pre- or post-nup is to ringfence this wealth and prevent that happening; to whatever extent you both decide is fair in the context of your relationship.
Who should consider a pre- or post-nup?
Pre-nups aren’t just for billionaires and celebrities. Think about a pre- or post-nup if one of you owns a home already, there are children from a previous relationship, someone runs a business, a significant inheritance is expected, or there’s a big difference in income or assets. A well-drafted agreement can protect what existed before the relationship and be fair to the other partner.
What makes a good agreement?
Courts tend to respect and uphold pre- and post-nups when:
- Both people enter freely and (if a pre-nup) the agreement is signed at least 28 days before a wedding, so there is no “sign this two days before the wedding” pressure
- There’s full financial disclosure, which is key because the agreement can fall apart if it’s later proved that one party deliberately undervalued assets or disclosure wasn’t complete (although if this has crossed your mind, marriage may not be the best option)
- Each of you has your own solicitor
- The terms are fair and meet needs (especially where children are involved)
Fairness is the keyword: you can’t contract out of meeting fundamental needs, and that’s a good thing.
The post-nup
Already married but don’t have a pre-nup? You’re not alone. Post-nups are increasingly popular when you buy a house together after marriage, one partner receives an inheritance, someone launches a business or is transferred shares in a family business, or you simply want clarity. After a rocky patch, a post-nup can also be a practical reset.
Timing and tone
You don’t need to bring up pre-nups over your first flat white. But once conversations turn to moving in, buying a home together, or marriage, financial transparency is healthy. Aim to agree on a pre-nup months before the wedding, long before wedding preparation and table plans take over. Keep the tone collaborative: this is a team document to ensure you’re both protected and provided for should you go your separate ways.
The romantic takeaway
In the real world, clarity can heavily reduce conflict and protect both parties. Hopefully, you never need to use your pre- or post-nup, but it can be invaluable when life throws a curveball.
Jurisdiction note: the points above are for England & Wales; if you live elsewhere, the rules differ.
