Are prenuptial agreements always enforceable under UK Law?

In the ever evolving and sometimes complex landscape of matrimonial law, the enforceability of prenuptial agreements has emerged as a pivotal and often contentious issue.

Over a decade has passed since the landmark decision in Radmacher v Granatino [2010] UKSC 42, which fundamentally altered the approach to these agreements in the UK. The ruling established that courts should recognise and give effect to prenuptial agreements freely entered into by both parties, unless fairness dictates otherwise.

As the prevalence of such agreements has soared in recent years, couples are increasingly turning to these legal documents to proactively shape the financial landscape of their marriages. However, the question still lingers: Are prenuptial agreements always enforceable under UK law? To unravel this complex inquiry, we delve into the criteria, formalities, and strategic considerations surrounding the enforcement of prenuptial agreements, exploring their impact in the context of evolving legal precedents and real-world cases.

Criteria for enforcement

While prenuptial agreements are not automatically enforceable, certain criteria and formalities must be met for their validity and enforcement. Key requirements include:

  • Child financial responsibility: Prenuptial agreements must not evade responsibility for the financial needs of any children.
  • Financial disclosure: Both parties must disclose sufficient details about their financial positions, including pre-existing and inherited wealth, and respond to reasonable inquiries from the other party.
  • Timing of signing: The agreement should be signed at least 21 days before the wedding.
  • Absence of coercion or misrepresentation: There should be no suggestion of duress, fraud, undue influence, misrepresentation, or mistake during the agreement’s formation.
  • Independent legal advice: Each party should seek independent legal advice before signing the prenuptial agreement.
  • Enforcing the agreement: Enforcement of prenuptial agreements involves strict adherence to the above conditions. Lengthy agreements often include detailed recitals and acknowledgments to minimise disputes about the awareness of each party’s financial position before signing. To enhance the chances of enforcement, parties should be proactive in upholding the terms, especially in situations where the marriage is short-lived, with no children involved.

Crossley applications

Crossley applications have gained prominence as a strategic approach for enforcing prenuptial agreements. The term originates from a specific legal case, Crossley v Crossley, where this approach was first used effectively. In cases like Crossley v Crossley, where a short-lived marriage ended, the court gave “magnetic importance” to the terms of the prenuptial agreement. Such applications allow parties to seek early determination on whether the agreement should be determinative of financial arrangements in divorce cases.

Case Example: Crossley v Crossley:

Both Mr. and Mrs. Crossley entered their marriage with significant wealth and signed a prenuptial agreement before marrying in January 2006. Unfortunately, their marriage ended in separation by March 2007, leading Mrs. Crossley to file for divorce in August of the same year.

The prenuptial agreement included a provision preventing Mrs. Crossley from making an AR (ancillary relief) claim in case of a marital breakdown. Mr. Crossley contested the divorce application, citing the prenup, while Mrs. Crossley argued that her husband hadn’t fully disclosed his assets before signing the agreement. The dispute centred on whether a complete financial disclosure (Form E) was necessary.

The court directed Mrs. Crossley’s solicitors to send a letter outlining her case on non-disclosure, to be addressed by Mr. Crossley in his Form E. The Court of Appeal rejected Mrs. Crossley’s appeal, with Lord Justice Thorpe stating that a judge could exercise discretionary power in ancillary relief proceedings to request reasons why a prenup should not govern asset division upon marriage dissolution.

Prenuptial agreements are becoming an increasingly common tool for couples to define their financial arrangements in anticipation of potential divorces. While not automatically enforceable, adhering to specific criteria and seeking legal advice enhances the likelihood of upholding these agreements. Additionally, proactive measures, such as Crossley applications, provide a strategic approach for securing the intended outcomes of prenuptial agreements in divorce proceedings.

It should be noted, therefore, that the effectiveness of these agreements continues to rely on the diligence and foresight of the parties involved, along with sound professional legal advice when drafting and reviewing the agreements.

For personalised advice and assistance in drafting or reviewing a prenuptial agreement, consult with the legal professionals at Hutchinson Thomas Solicitors. Our experienced team can guide you through the process, ensuring that your agreement is legally sound, and your loved ones are protected.

If you would like more information or advice on any issues relating to matrimonial and relationship law, contact Robert Williams on 01639 640152 or email