Prenuptial agreements in England and Wales are highly customisable, they can be tailored to a couple’s unique financial situation. However, there are clear limits on what you can put into a prenup. If you’re considering a prenup (perhaps you’re a couple in the West Midlands or Worcestershire preparing for marriage), it’s crucial to understand which provisions are permissible under UK law and which aren’t.
This guide is created by Andrew Wood, Associate and Head of Family Law at Waldrons Solicitors. Andrew has over 20 years of family law experience across the Midlands. He advises couples on drafting solid prenuptial agreements, making clear what can be included and steering them away from terms that the courts would refuse to uphold.
Andrew breaks down the do’s and don’ts of prenup contents, so you can ensure your agreement is both effective and fair.
What can be included in a prenup
A prenup’s primary purpose is to set out financial arrangements, so most financial matters can be included. Common provisions in UK prenuptial agreements include:
- Lists of assets and how they’ll be divided: Prenups usually contain a detailed inventory of each party’s assets (and debts) at the time of marriage. This might cover real estate, investments, bank accounts, cars, business interests, retirement savings (pensions) and valuable personal possessions. The agreement will state how these assets should be treated if you divorce, for example, “each keeps their own premarital property” or “Asset X will be shared in these proportions.”
- Protection of pre-marital property: Couples often agree that assets owned by one person before the marriage remain that person’s property afterwards. For instance, if one spouse already owns a house or a successful company, the prenup can confirm the other spouse will not claim a share of that specific asset on divorce.
- Treatment of assets acquired during marriage: A prenup can also address assets you might acquire together. For example, you could agree how a jointly purchased home would be split or set a formula for dividing savings accumulated during the marriage. The goal is to have a predictable plan rather than leaving it entirely to future negotiation or court decisions.
- Future earnings and investments: Interestingly, a well-drafted prenup can even include clauses about certain future assets or earnings. For example, if one spouse expects a large inheritance or plans to build a business empire, the prenup might state how those future gains will be handled (often by clarifying they’ll remain the property of the spouse who earns or receives them). Similarly, if one partner will support the other through higher education or a new venture, the agreement could outline what happens financially in return.
- Debt responsibility: You can include terms about debts, specifying that each party will remain solely responsible for any debt they bring into the marriage (such as student loans or credit card balances) and perhaps even debts taken on during the marriage under their sole name. This can protect one spouse from being held liable for the other’s liabilities.
- Spousal Maintenance Provisions: Prenups often state whether either spouse will pay maintenance (ongoing support) to the other and if so, how much and for how long. While the UK courts retain discretion on maintenance, an agreed provision can carry weight. Typically, a prenup might either waive spousal support on divorce or set a predetermined amount, if it’s considered fair to both sides. (It’s wise to include a review clause for long marriages or life changes, since what’s fair can change over time.)
The Law Commission has highlighted the importance of clarity around financial arrangements in marriage and divorce. More on this can be found: https://lawcom.gov.uk/project/matrimonial-property-needs-and-agreements/
In summary, any clause that deals with finances and assets is generally acceptable, so long as it is lawful and not grossly unfair. A prenup is essentially a financial contract, so its contents should stick to financial matters.
What cannot be included in a prenup
UK law draws a firm line when it comes to certain subjects. You cannot use a prenuptial agreement to impose decisions about non-financial matters or to override the law’s protection of each party and any children. Here are key things that can’t go into a valid prenup:
- Child Custody or Child Support Arrangements: Prenuptial agreements cannot dictate matters concerning children, such as with whom children will live or how much child maintenance should be paid. In the UK, the welfare of children is decided at the time of separation (if the parents can’t agree) based on the child’s best interests, a court will not consider itself bound by any prior agreement between the parents on these issues. For example, you cannot put in your prenup that “if we divorce, Mother will have full custody” or “Father will pay £X for child support.” Such clauses are unenforceable and would be disregarded by the courts.
- Personal or Lifestyle Clauses: A prenup is not the place for specifying personal expectations or day-to-day lifestyle arrangements. Provisions like “who does which chores,” “frequency of holidays,” or rules about family decisions (e.g. choice of religion or schools for children) are not suitable for a legal agreement and any attempt to include them would carry no legal weight. The same goes for clauses of a moral nature (for instance, you can’t have a clause penalising a spouse for infidelity, as English courts would consider that punitive and irrelevant to financial outcomes).
- Anything Illegal or Against Public Policy: This may sound obvious, but a prenup cannot include terms that are illegal (e.g. an agreement to do something unlawful) or grossly violate public policy or morality. An extreme example would be a clause incentivising divorce, say promising a large payment if one spouse initiates divorce. Courts frown upon anything that appears to encourage divorce or that undermines the status of marriage, so such terms would likely be void.
- Removing Court’s Jurisdiction Completely: You cannot use a prenup to oust the fundamental power of the family court to oversee fairness. British law ensures that upon divorce, the court can consider all the circumstances and ensure a fair outcome, especially regarding each partner’s financial needs and any children’s needs. This means a prenup cannot say “Spouse A gets everything and Spouse B gets nothing, and neither can ask the court for more.” If a prenup tried to do that, the court would not uphold it, at least not to the extent it leaves one party destitute or fails to meet a child’s requirements. In fact, the Law Commission (a body that recommends legal reforms) has specified that prenups should only be binding after both partners’ needs, and any responsibilities toward children, have been met. Practically, this means you shouldn’t include any clause that would leave one spouse in a financially desperate position while the other is well provided for.
- Unfair or One-Sided Clauses: There’s no hard-and-fast rule on every scenario but know that fairness is key. If a clause is extremely one-sided or punitive towards one party, it may not be enforceable. For instance, an agreement that one spouse gets all the assets and the other gets nothing at all will almost certainly not stand, as it would flout the principle that marital partners have a mutual duty to support one another to a reasonable degree. Similarly, an agreement that attempts to exclude all future inheritance or pension claims without providing anything in return might be deemed unfair. The court always has the final say and will not uphold parts of an agreement that it finds manifestly unjust or against the interests of any dependent family members.
For example, in the case The Supreme Court confirmed in Radmacher v Granatino that courts should generally give effect to a nuptial agreement entered into freely unless it would be unfair. https://www.supremecourt.uk/cases/uksc-2009-0031
To put it simply, a prenup cannot be used to micromanage personal aspects of your relationship or avoid obligations. It’s a financial safety net, not a tool of control. At Waldrons we advise clients in the West Midlands that a good prenup should focus on assets and finances and steer clear of any provisions about children or day-to-day personal life, as those won’t be worth the paper they’re written on.
Ensuring Your Prenup is Enforceable
Knowing what you can and can’t include is half the battle. The other half is ensuring the terms you do include will hold up. Here are a few tips for a sound prenup under UK law:
- Use Clear, Legal Language: The agreement should be drafted (ideally by a solicitor) in clear terms to avoid any ambiguity. Vague or poorly worded clauses might cause confusion later or be deemed unenforceable.
- Full Financial Disclosure: Both partners must be transparent about their finances when making the prenup. Hiding assets or information can invalidate the agreement. Before signing, you should exchange schedules of assets, liabilities, and income. This disclosure can even be listed in the prenup itself or in attached documents.
- Independent Legal Advice: Each party should receive their own legal advice on the prenup. It’s strongly recommended (and essentially expected by courts) that both of you consult separate solicitors who can explain the implications. This helps ensure neither person is unwittingly agreeing to something not in their interest, and it prevents later arguments like “I didn’t understand what I signed.”
- Sign Well Before the Wedding: Last-minute prenups are a bad idea. To avoid any suggestion of pressure or duress, the agreement should be signed in good time before the wedding – generally at least 28 days prior is advised. If a prenup is presented on the eve of the wedding, a court might later decide one spouse was under unfair pressure to sign and discount the agreement. Early planning is therefore essential.
- Keep it Fair and Updated: Circumstances can change (for example, you might have children, or one spouse’s financial situation could drastically shift). While you can’t predict every change, you can include review clauses or at least the understanding that you may update the agreement or create a post-nuptial agreement later. Above all, try to make the initial terms as fair as possible – neither party should feel “robbed” by the prenup. If both of you feel the agreement is reasonable, it’s more likely a court would agree in the future.
“Think of a prenup as a financial plan as it should be fair, thorough and focused only on money matters,” advises Andrew. “I always ensure that the prenups we draft for couples in the West Midlands and Worcestershire stick to finances and avoid anything the court wouldn’t accept. The goal is a robust agreement that will be respected if it’s ever needed. By keeping children and personal lifestyle clauses out of it and prioritising fairness, you greatly increase the chances that your prenup will do its job, therefore giving both partners clarity and security.”
If you are planning marriage and want clarity about your finances, speak to the Waldrons Family Law team.
To learn more about prenuptial agreements and how they work in England and Wales, you can read Andrew Wood’s related guides:
What is a Prenuptial Agreement?
What Can and Can’t Be Included in a Prenup?
Are Prenuptial Agreements Legally Binding in the UK?
How to Arrange a Prenup in England and Wales – Step-by-Step Guidance
Each article explains a different aspect of prenups, from legal enforceability to the practical steps involved in arranging one before marriage.
