I am a big fan of prenuptial/pre-civil partnership agreements (‘prenups’) because, at the very least, both parties are forced to have really open and transparent conversations about money, finances, goals and aspirations. If you think about it, anyone looking to make marriage/civil partnership vows should do this before they sign on the dotted line. If I had my way, not only would there be mandatory full financial disclosure, but there would also be mandatory discussions on how religious festivals are celebrated, what happens during family visits/holidays, and the division of household labour, but I digress.

In Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42, the status of a nuptial agreement was clarified at [71]:

‘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.’

The Supreme Court acknowledged that the question of when it would not be fair to hold the parties to their agreement might require guidance, so they provided it at [76]–[82]. In the guidance, two key sections show that nuptial agreements are not a ‘sign and done’ scenario. The Supreme Court said that an agreement is likely to be unfair where:

• it prejudices the reasonable requirements of any children of the family; and/or
• it determines too many contingencies or pre-determines unknowns and unforeseen circumstances.

I have found there is a significant public misconception about prenuptial agreements and their cousin, the post-nuptial/post-civil partnership agreement (let’s call them all nuptial agreements) – Joe Public seems to think it’s a case of ‘sign and done’. This is very, very wrong. Even those who have been through the process often do not undertake the review of the nuptial agreement which their legal advisor recommended. They seem to think that some wondrous legal magic will keep a nuptial agreement fair even when it was signed 10 years before, or before having a child or children, or before house purchases, or before one took a career break, etc.

How can the party to a nuptial agreement avoid what was a fair agreement becoming an unfair agreement?

• Have a quick review shortly after the ceremony, confirm each party is happy – ensure you keep the nuptial agreement basics in place, e.g. independent legal advice, transparency, no pressure.
• Have regular reviews at least every 5 years, and after every big event, e.g. the birth of each child, receiving an inheritance, any significant change in income/earning capacity. In fact, anything that impacts a party’s needs.
• Make sure reviews are comprehensive, which includes:
  • independent legal advice for each party;
  • full financial disclosure;
  • no outside pressures – do not have the review immediately before/after the birth of a child, while one party or a close friend/relative is seriously ill, etc.;
  • no time pressure – the last thing you want the judge to read is a letter that appears scripted by Scattered Spider, the infamous social engineering hacking collective;
  • clear and evidenced consideration of the change in circumstances or the passage of time; and
  • clear reasons for any change (or not) to the agreement.

The above shopping list comes at a price, and it is perhaps a price that comes at an inconvenient time, e.g. adapting to the arrival of a new child. There was a financial commitment to the initial agreement; that investment should not be thrown away.

A good and regular review of a nuptial agreement could save £00,000s in legal costs and protect parties from the stress and emotional damage of financial remedies proceedings. The TikTok generation would refer to this as ‘investing in your future self’.

It is, of course, a stretch to say that parties must be as committed to their nuptial agreement as their actual marriage/partnership. However, parties do need to be as committed to updating their nuptial agreement as they are to other important life admin, such as dental checkups, cancer screenings and car maintenance.

In S v S (Ancillary Relief) [2008] EWHC 2038 (Fam) Eleanor King J said at [23⁠(ii)] (my emphasis):

‘I do not take Smith v Smith to be saying that the court must always hear a case as a full blown ancillary relief hearing where there is an alleged agreement, but rather as a trenchant reminder that an agreement forms part of all the circumstances of a case and that, even if such an agreement be found to be of magnetic importance, the court should only ever consider such an agreement against the backdrop of all the s25 factors.’

For a nuptial agreement to retain magnetic importance in the consideration of all the circumstances of the case, parties must ensure that their nuptial agreements evolve and adapt to their changing circumstances and needs, even if that does cost a little bit of money.

I bet if you asked any person at the end of a financial remedy final hearing, ‘Would you tell your past self to invest in and maintain a nuptial agreement?’, they would tell you there is a lot to be said for ‘investing in your future self’.