Guidance Note: Preparing pre- and post-marital agreements

This guidance was reviewed in January 2026. The law or procedure may have changed since that time and members should check the up-to-date position.

Note that we use the term ‘marital agreements’ as an overarching term covering pre- and postnuptial agreements.

Marital agreements are an area of risk and we are increasingly seeing more litigated cases where solicitors’ files are placed under scrutiny.

• When instructed by either party on a prenuptial agreement, it is important to keep a full file in case it needs to be referred to in the future.
• Take careful file notes and keep a record of all correspondence.
• Ensure that a detailed record of all advice is kept, including in particular advice where the agreement may differ from what may otherwise have been expected on separation.

Remember the Resolution Code of Practice

The dynamics of the relationship between parties to a marital agreement will obviously be very different from those instructing solicitors in respect of the breakdown of their marriage, but Resolution members should comply with the Code of Practice in relation to marital agreements as much as when dealing with separation and divorce.

Understanding the dynamics of the parties’ relationship and what they want to achieve is crucial. In particular:

• Whether there is pressure coming from one party or the other, or extended family members, to have a marital agreement.
• Why they want an agreement – is it because they want to try to protect inherited, family or pre-acquired assets (eg company shares, a divorce settlement, a compensation payment for medical negligence or loss of employment), trusts interests or future inheritance, including for their children in the event of second or later marriages?
• Are they an international couple who need an agreement in England and Wales as part of a wider jurisdictional picture where marital agreements are the norm? Do you need to refer the client to a foreign lawyer for advice, or have the foreign lawyer’s input into the agreement itself?
• Whether the parties agree to the concept of a marital agreement and whether they have considered what it should achieve, or has it not been discussed at the stage when you are instructed?
• The parties’ respective financial positions – is one wealthier than the other or are their positions similar?

Remember that, in the case of prenuptial agreements, the parties are wanting to get married and may find negotiating and agreeing the terms of a marital agreement very uncomfortable.

1. Discussions with your client

The family lawyer’s initial involvement in a marital agreement is likely to commence with the party wanting the agreement seeking advice, or the party who has been asked to enter into one taking advice, whether that is at the outset, with a letter from the other party’s solicitor or having received a draft agreement. In either scenario, discussions with your client should take place at an early stage to set out what is involved in terms of:

• process;
• disclosure;
• timing;
• costs;
• forum for discussions;
• options; and
• a foreign lawyer’s involvement (if necessary).

2. Costs

As with all new instructions, a detailed retainer letter should be sent to the client. It is important that the issues below are considered when providing costs information to the client in relation to a marital agreement.

The retainer letter should contain an estimate of your fees for advising on the agreement, bearing in mind the steps that should be followed:

• taking instructions;
• giving formal advice, always recorded in writing;
• providing and considering full and frank disclosure;
• drafting, negotiating and finalising the terms of the agreement;
• seeking advice in other jurisdictions or from other lawyers/advisers (if necessary); and
• the execution of the document (for example, notary costs).

Consider insurance cover and whether your liability can or should be limited in your retainer letter.

• Who will pay the costs – your client, the other party, a third party or each bear their own? If you are acting for the party whose costs are being paid, you must ensure that they do not feel pressured or influenced into the agreement, or any individual terms, because of that payment.
• If you know at the outset that foreign lawyers will need to be involved, make contact with them and find out what their likely costs are and confirm in the retainer letter. Are you going to instruct them on behalf of the client or will the client instruct them directly? The International Academy of Matrimonial Lawyers has a network of specialist family lawyers in other jurisdictions, which can be searched online.
• Will any other local lawyers need to be involved, eg private client or corporate lawyers in respect of trust and company disclosure, or to prepare wills following the agreement? Will there need to be ancillary documents prepared, eg a shareholders’ agreement if corporate interests are to be regulated? Set out whether their costs are included in your estimate or not.
• Will you need assistance from third party advisers, eg accountants? Set out what you are and are not going to do, for example if the accountant will prepare the disclosure or a valuation, set out clearly that this is not included in your estimate.
• Will you be taking counsel’s advice on the agreement? What are their likely costs?
• Also consider timings with the client at this stage – what you need from them, what you will do and when you expect it to be done by. Clients often do not understand that entering into a marital agreement is not a simple process, given the safeguards which need to be considered and dealt with, so managing expectations on timings and costs at the outset is important.

3. Issues to cover in the first meeting

As has already been said, understanding why the agreement is to be put in place and the dynamic of the parties’ relationship will be crucial. Understanding the history of the relationship will be key to this and you should discuss with your client all background factors that may be relevant to the agreement, including:

This list of questions is not intended to be exhaustive, but a guide to the issues which may need to be considered.

It is also important at the outset to consider the correct forum for the discussions/negotiations (discussed further below).

4. Advising your client

It may be that the advice needs to be dealt with in two parts, depending on who you are acting for – general advice about marital agreements when taking initial instructions and then specific advice, including in writing, on the agreement itself.

It is recommended that advice be given to the client by the lawyer in writing before the agreement is executed as it may form a key part of the evidence if the agreement’s validity is questioned at a later date in proceedings. Keeping detailed written attendance notes of all discussions with the client and the other solicitor is also advisable. It is important to ensure and document that your client understands the agreement and does not feel pressured into reaching it.

In order to satisfy the requirements for each party to have independent legal advice, it is recommended that the following matters are covered in the advice given to the client:

As noted, this advice should be given in writing.

5. Forum for discussions

It is important for you and your client to consider together the right forum for discussions as there are a variety of options available, which could have a significant impact on how your client feels about the process itself as well as the outcome.

You might discuss with your client:

• How comfortable they feel about face-to-face discussions regarding the agreement with their fiancé(e)/spouse. For example, is finance something they are comfortable to discuss openly or is it a difficult topic between them.
• Would they prefer discussions to take place “round table” so that there are no misunderstandings and they have the ability to listen to and contribute to the discussions. Alternatively, they may prefer you (potentially with another professional, eg an accountant) to lead the discussions so that they do not feel they are placed in an awkward position with their fiancé(e)/spouse.
• The level to which your client feels confident in discussing finances: for some (but not all), it is too difficult for them to be able to process the financial consequences of what is being discussed, particularly where the motivation for reaching an agreement is to marry their fiancé(e)/spouse.
• To what extent your client and their fiancé(e)/spouse intend to discuss the negotiations at home and whether that is to be encouraged or avoided.
• Understand what level of transparency your client considers should exist as between the lawyers in terms of instructions from the clients.

The forums which can be used for discussions include:

• round table meetings with lawyers but with or without the clients on some or all occasions;
• using a collaborative approach (see further below); or
• mediation (with the agreement then being drafted by the parties’ lawyers).

The relationship and communication between the lawyers representing the clients is also crucial in maintaining a constructive approach for the clients. This will avoid tensions wherever possible. The lawyers should actively seek to keep any differences of opinion on the terms of the agreement as a source of debate rather than conflict. It is essential that the clients are kept, insofar as possible, from reaching the point of ultimatum.

Once lawyers are instructed to act, they should begin a dialogue as soon as possible and ideally discuss, based on their instructions from their respective clients:

• The forum for discussions.
• What level of financial disclosure will be provided on each side and whether it will be exchanged. Are forms E appropriate or necessary for both or either client? Will schedules of assets be sufficient to provide the material disclosure necessary for the agreement and who will provide them (eg an accountant where appropriate)?
• What supporting information/verification is required in respect of the schedules/forms E?
• Where there are valuations to be obtained, should there be joint or sole instructions?
• If there are questions to be raised on the valuations/schedules, how will this be dealt with – in meetings or in correspondence?
• Whether the discussions between the lawyers will take place on an open/without prejudice and subject to contract basis until the agreement is executed.
• Would there be a purpose in producing heads of agreement for the clients prior to either lawyer undertaking the cost of drafting the agreement?
• Which lawyer will draft the agreement or will it be dealt with jointly?

Lawyers should follow the Code of Practice at all times when dealing with each other in relation to these agreements.

Using a collaborative approach can be ideal for these agreements. Where the parties’ lawyers are collaboratively trained, this should be carefully considered as the benefits include:

• openness and transparency;
• an emphasis on honesty and trust between the lawyers as well as the clients;
• the ability to explore freely all of the options and considerations for the clients in a supported environment;
• articulating and recording clear, shared goals for the future;
• four-way meetings, which can avoid misunderstandings and tensions; and
• clients playing a full role in the process.

6. Safeguards

There are safeguards to consider in the client’s interest as well as general considerations for the lawyer to take into account when preparing the agreement. The law is constantly evolving in this area and lawyers advising in relation to these agreements must keep up to date with case law and seek specialist counsel’s opinion if in doubt.

This is a fast-changing area of family law with recent case law and practitioners should regularly update their internal best practice guidelines in this area of work. A sound starting point when drafting a marital agreement is Resolution’s Marital Agreements which is published online and in print.

Practitioners should bear in mind that the decision in Radmacher [2010] UKSC 42 emphasised (at para 75) that:

“the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

Practitioners should also be aware of the Law Commission’s 2014 report on Matrimonial Property, Needs and Agreements, which gives further guidance in relation to the best practice to adopt when drafting marital agreements. The Law Commission recommended the introduction of “qualifying nuptial agreements” as enforceable contracts, which would enable couples to make binding arrangements for the financial consequences of divorce. Certain requirements would have to be met for the agreement to qualify:

• The agreement must be a valid contract.
• The agreement must be made as a deed.
• The agreement must contain a statement from both parties that they understand it is (or is intended to be) a qualifying nuptial agreement.
• The agreement must be made at least 28 days in advance (but note that recent case law suggests that agreements made within 28 days can still be uphehld, or have a persuasive effect, as long as the agreement was fully entered into with full appreciation of its implications (ie the Radmacher test).
• All material disclosure has been exchanged.
• Both parties must have received legal advice (but note case law suggests that this is not “fatal” (CMX v EJX [2022]EWFC 136).

The general safeguards from the client’s perspective in terms of the considerations that might enhance or detract from the weight of a marital agreement include the following:

• The agreement is not binding and the starting point is the relevant legislation, not the agreement itself. The agreement cannot and does not override legislation nor prevent a Judge from deciding on the appropriate division of assets.
• The significance of an agreement is as a relevant circumstances of the case (but then as set out in Radmacher and subsequent case law, such agreement should be given effect if freely entered into with full appreciation of the implications unless it would not be fair to do so).
• The parties must enter into the agreement without undue pressure or influence.
• The parties must be informed of its implications and be advised independently on its terms by lawyers, even if the terms of the agreement itself have been reached through mediation.
• A key question is whether there has been any material lack of disclosure, information or advice given to or received by the client.
• Are there any standard vitiating factors, eg fraud or misrepresentation? If so, the effect of the agreement will be negated.
• Is there any unconscionable conduct (eg undue pressure falling short of duress) which may be likely to eliminate the weight to be attached to the agreement, or other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage? The lawyer must consider this carefully where the motivation for the marital agreement is from the family of one of the parties or the costs of the agreement are being met by the financially stronger party or their family.
• The circumstances of the parties at the time will be relevant: their age, maturity, emotional state, previous marriages and so on.
• If the terms of the agreement are unfair from the start, this may reduce the weight of it in the future but if you are acting for the weaker financial party, a client should always be advised that they should sign the agreement in the expectation it will be upheld.

7. Considerations

When considering whether the content of the agreement is likely to be followed by the court in any subsequent breakdown in the marriage, the overriding criterion is fairness, so do consider the following.

• The key issue is what if the agreement “makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness” (WW v HW [2015] EWHC 1844 (Fam) cited in Radmacher at para 75)
• Crucially, the Supreme Court in Radmacher (para 75) explains that “the fact of the agreement is capable of altering what is fair”.
• If each party is in a position to meet their “needs” then “fairness may well not require a departure from their agreement” (Radmacher, para 82). If any rectification of the agreement is necessary, the court may only deal with making up the shortfall necessary to meet needs.

The Supreme Court guidance in Radmacher currently highlights the following main issues for consideration:

• Children: a marital agreement cannot be allowed to prejudice the reasonable requirements of any children of the family.
• Autonomy: the court emphasises the importance of respect for personal autonomy over paternalism.
• Non-matrimonial property: the court considers that “there is nothing inherently unfair” in an agreement which makes express provision for pre-marital property or future acquired property from third parties (inheritances).

The post-Radmacher case law suggests that “fair” agreements will be upheld, and that “Litigants must realise that it is a significant step to instruct top lawyers to prepare a pre-nutial agreement prior to marriage. It is highly likely that they will be held to these agreements in the absence of something pretty fundamental that vitiates the agreement. “ (M v A [2023]EWHC 613 (Fam)). However, bear in mind that there are circumstances where such agreements are not upheld and no weight are attributable to them (eg Ipekçi v McConnell [2019] EWFC 19).

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