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Is your prenuptual agreement enforceable

Posted: 17-04-2018


We often receive enquiries regarding prenuptial agreements and questions relating to the enforceability of such agreements. Unfortunately, the law surrounding prenuptial agreements is not an exact science.

In 2010, the landmark Radmacher case developed the law in this area so that prenuptial agreements are now recognised. In the case it was held that the courts should give effect to a prenuptial agreement that is freely entered into by each party unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.

Fairness is a subjective concept and there is no definition that fits all circumstances of a case and courts have been keen to emphasise that whether a prenuptial agreement is fair will depend on the facts of the particular case. Furthermore, even though the courts need to consider reaching a fair result, the fact that an individual has freely entered into a prenuptial agreement needs to be taken into consideration when the court is assessing the case.

A failure to meet one party’s needs could result in a court determining that it would be unfair to hold the parties to the agreement. Differing opinions as to how ‘needs’ should be interpreted has meant that judges have had to struggle to decide ‘when the financial needs’ of one party ‘could mean that it would be unfair’[1] to be bound by a prenuptial agreement

A prenuptial agreement may also be deemed unfair where a change in circumstances from when the prenuptial agreement was signed. For example, it could be unfair to hold the parties to the agreement, for example an unplanned child.

The need for the courts to decide whether it would be fair to hold the parties to the agreement means that there remains uncertainty surrounding prenuptial agreements. It takes away individual autonomy because when people enter into an agreement there is no certainty that it is binding because even though it may have been entered into correctly, the courts could dismiss the agreement with the discretion which they have been given regarding the determination of fairness.

[1] Brigitte Clark, ‘Ante-nuptial Contracts after Radmacher; an Impermissible Gloss? (2011) Journal of Social Welfare and family Law 15 21

Further sources:

Caitlin Jenkins, ‘Are Pre- and Post-marital Agreements finally worth the paper they are written on?‘ (2001) PCB 30.

Clark B, ‘Should Greater Prominence Be Given to Pre-Nuptial Contracts in the Law of Ancillary Relief?’ [2004]

Harris I, Spicer R, ‘Prenuptial Agreements- A Practical Guide’ (2008 Hammicks Legal Publishing)


This article does not constitute legal advice and is for general information purposes only.