Asset protection: Top tips for entering into a pre-nuptial agreement

This article explores key considerations for anyone thinking about entering into a pre-nuptial agreement.

Pre-nuptial agreements, which set out how a couple would like their assets to be treated in the event of divorce, are far more common than they used to be, even just 5 years ago. Raising the issue of having a pre-nup is less taboo, and more couples are actively engaging with what should happen to their assets if they divorce. Anyone can have a pre-nup, although typically, they tend to be entered into by those who have already accumulated wealth, whether through their own endeavours or gift and inheritance, or those who will acquire wealth in the future through inheritance. With an increasing number of pre-nups being entered into, we set out below some key considerations for clients to bear in mind.

1. Start the conversation early

The earlier the conversation is started, the better. Agreeing the terms of a pre-nuptial agreement can take time, particularly as high-level disclosure needs to be exchanged, advice obtained by both parties and terms negotiated. Raising the idea early also gives a partner time to get used to the concept of an agreement, rather than feeling as though it has been introduced at the last minute. Leaving it until shortly before a wedding can add unnecessary stress, and there is a risk the agreement will not be upheld if a party is under pressure to sign. Generally, four to six months before the wedding is the ideal timing.

2. Ensure the safeguards are met

Since the Supreme Court decision in Radmacher v Granatino in 2010, the court is likely to give weight to a pre-nuptial agreement that has been freely entered into by each party who has had a full appreciation of its implications, unless it would be unfair to hold the parties to it. In practice, this means that both parties should usually take separate legal advice, provide material financial disclosure and have enough time to consider the agreement properly before signing it. There must not have been any undue pressure or duress on either party to enter into the agreement and it must be ‘fair’ – see below.

The Law Commission recommends that marital agreements should be entered into at least 28 days before the wedding. While timing is not the only factor the court will consider, signing an agreement in good time can help reduce the risk of arguments about undue pressure or duress later on.

3. Make sure the agreement is fair

Fairness is central. In practice, an agreement needs to be both procedurally fair and substantively fair. Procedural fairness means that the safeguards mentioned above have been properly followed. Substantive fairness means that, broadly speaking, the agreement must meet both parties’ housing and income needs and, where relevant, the needs of any children. Unless the marriage has been a short one and without children, an agreement is unlikely to be fair if one party is left without sufficient capital for housing or income to meet day-to-day living costs and the standard of living enjoyed during the marriage may be relevant, although not a determinative factor.

This fairness requirement is one of the key differences between pre-nuptial agreements in England and Wales and some marital property regimes in other countries. In many civil law jurisdictions, property regimes may apply automatically, or parties can elect certain legal frameworks to govern their assets. These regimes are sometimes entered into without legal advice, let alone independent advice, and they are not agreements that are reached through negotiations. An English court may not uphold such an agreement as the safeguards mentioned above will not have been met and the result of the agreement may be unfair. Therefore, if a party marries outside England and Wales and enters into a property regime, advice should be sought in England and Wales as to how the agreement may be treated and what steps can be taken to ensure the intention of the parties is upheld.

4. You can decide how certain assets should be treated

An agreement can set out how particular assets are to be treated if the relationship breaks down. This can include jointly owned property or property in either party’s sole name, inherited wealth, family gifts, sentimental family heirlooms, business interests, pensions, income and capital. The agreement can set out what should be shared or distributed in a certain way and what either party may wish to ring-fence. Someone who has received family money may want to ring-fence gifts or inheritance, while someone with a business may want to agree whether the business is to remain their separate asset or whether any value should be shared in the event of separation. Having those conversations in advance can help both parties understand what is intended to be protected, what is to be shared and how assets should be dealt with in the agreement.

5. Avoid making arrangements for children

Marital agreements do not usually set out detailed arrangements for children, whether practical arrangements or financial. Decisions about children’s welfare are usually best made in light of the circumstances at the time of separation, and any prior agreement may not be upheld if there were to be a dispute.

It is not possible to contract out of financial obligations to children or to use an agreement to avoid child maintenance. As pre-nuptial agreements need to be substantially fair, which means they must meet needs, if there are children, then the provisions in the agreement need to be sufficient to meet the needs of the children. Where a party has children from a previous relationship, advice should also be taken as to whether those children may be treated as children of the family and what reasonable financial provision may be needed to meet their needs too.

6. Take international advice where needed

As indicated above, different countries treat pre-nuptial agreements in different ways. If you are planning to move abroad, have assets in more than one country, or your fiancé, spouse or partner is from another country, it is important to consider whether an English and Welsh agreement would be recognised and upheld if proceedings took place elsewhere. It is also important to remember that Scotland and Northern Ireland apply different laws than those applied in England and Wales.

Similarly, if moving to England and Wales from another country, it is important to take advice on whether an agreement signed in a party’s home country would be upheld by the courts of England and Wales.

7. Review your Will and wider succession planning

Asset protection planning should not stop with the pre-nuptial agreement. It is also important to think about your Will. Marriage revokes an existing Will unless it has been made in contemplation of that marriage, so succession planning should be reviewed at the same time and appropriate Wills put in place. Typically, provision in a Will should be no less generous than the provision made in the pre-nuptial agreement, but often parties wish to be more generous. Consideration will need to be given to provision for children from previous relationships.

8. Keep an eye on legal reform

In June 2026, the Ministry of Justice opened a consultation on reforming the law relating to the financial consequences of relationship breakdown in England and Wales. The consultation includes proposals relating to qualifying nuptial agreements, which could make certain pre-nuptial agreements binding, as well as proposals for a statutory framework for eligible cohabitants on separation.

At present, marital agreements are not binding in England and Wales, although they are likely to be upheld if the safeguards above are met. The consultation proposes making the agreements binding, with built in safeguards for the agreement to qualify.

At present, cohabitants currently have very limited financial claims against each other on separation, which are costly and difficult to pursue. The government is proposing introducing a new statutory framework to allow eligible cohabitations to make certain financial claims on separation. This would apply automatically but couples would be able to opt out if both parties agree. This is likely to be in a cohabitation agreement. Against that background, couples may want to consider putting a cohabitation agreement in place now to record ownership of assets, financial contributions and what should happen if the relationship ends.

As will be clear from the above, it is important for anyone considering a pre-nuptial agreement to take advice at an early stage so any agreement can be tailored to their specific circumstances.

This article was written by Tamara Turner-Distin (Solicitor in the Family team) and Richard Handel (Partner in the Family team).