Postnuptial Agreements

It was once contrary to public policy for a married couple, or a couple about to get married, to make an agreement that provided for how their financial assets should be distributed on separation. As a result, courts did not regard themselves as bound by nuptial agreements and they were often not considered worth the paper they were written on. The attitude of the English Courts towards pre and postnuptial agreements was in complete contrast to many other jurisdictions.

A hint that things may change arose in the case of S v S [1997] when Mr Justice Wilson said, “Where the circumstances surrounding the prenuptial agreement and the provision therein contained might, when viewed in the context of the other circumstances of the case, prove influential or even crucial… we should be cautious about too categorically asserting the contrary”.

Over the course of the following years, prenuptial agreements were given more weight but postnuptial agreements remained rare.

In 2006, in the case of NA v MA [2006] the husband was unsuccessful in arguing that a postnuptial agreement, which had been entered into after he discovered his wife had committed adultery, should be upheld. He had pressurised her into signing an agreement, and so the judge found that the wife had been subject to undue influence and did not uphold the terms of the agreement.

In the case of MacLeod v MacLeod [2008], the Privy Council took the view that postnuptial agreements could be treated as binding contracts. The parties had married in 1994, after signing a prenuptial agreement. Six years and five children later when the marriage was in difficulty, they varied this by entering into a postnuptial agreement. By August 2003, the marriage had totally broken down. The Privy Council held that the postnuptial agreement was valid and enforceable. They did, however, add that provisions in the agreement which tried to prevent the court from exercising its discretion were considered void.

In the hugely publicised case of Radmacher v Granatino [2010] the Supreme Court confirmed that the old view that agreements providing for future separation were contrary to public policy was obsolete and that the MacLeod decision was correct. However, the judges also held that this should apply not just to postnuptial agreements, but also to prenuptial agreements.

Many people are already aware of the possibility of having a prenuptial agreement, but fewer think about the possibility of having a postnuptial agreement. A postnuptial agreement records what a couple wish to happen in relation to financial matters in the event of the breakdown of their marriage, but is entered into after the marriage as opposed to beforehand. While some people take the view that this is unromantic it can also be very practical, particularly if the couple have been through a difficult patch.

Spouses need to be willing to consider each other’s financial needs and to try to come up with a settlement that takes into account both of their financial priorities and which is fair meets both of their needs. It is important to appreciate that the agreement may not necessarily be binding on a judge but it may be taken into account and if, at the time of the divorce, the judge is of the view that those arrangements are fair and certain formalities have been complied with, it is likely that the postnuptial agreement will be very persuasive, if not binding.

It is therefore important that if a couple are considering a postnuptial agreement, they each have the benefit of independent legal advice, provide each other with full disclosure of their respective financial positions and are under no pressure to sign it. If there are children or children are a possibility in the future, then it is essential that reasonable provision is made for them, including housing and maintenance, which may include spousal maintenance if one parent is intending to give up work to look after the children.

In June 2026, the government launched a consultation named “A fairer end to relationships”. The consultation deals with proposed areas of reform for Family law in England and Wales. One of the proposals looks at the introduction of Qualifying Nuptial Agreements, or QNAs, which would be legally binding prenuptial and postnuptial agreements provided certain conditions and safeguards have been met. The aim of QNAs is to provide more certainty and control for couples over the financial arrangements in the event of a divorce. Many family lawyers take the view that the proposals reflect the approach that the Family courts are already taking, though any introduction of QNAs would still mark a significant shift in the legal status of nuptial agreements.