A Complete Guide to Prenups in England & Wales for High Net Worth Individuals
When significant wealth, business interests, property or overseas assets are at stake, entering marriage without a well-considered legal agreement can leave you vulnerable. Prenuptial agreements (often referred to as prenups) can offer clarity, protection, and peace of mind — but only if structured properly, both in content and formality. This guide aims to be a thorough resource: covering definitions, enforceability, international issues, drafting tips, challenges, best practices, and common questions around prenups.
Disclaimer: This article is for general guidance and does not substitute legal advice. Always consult specialist family lawyer.
Introduction: Why Prenups Matter for High Net Worth Couples
Marriages today often involve complex finances: property, business ventures, trusts, international investments and assets, and future inheritance. A prenup can:
Ring-fence premarital, inherited or gifted assets
Clarify how future wealth, bonuses and long term incentives/awards, and investments will be treated
Limit or structure spousal support
Provide clarity and reduce conflict in the event of breakdown
Prenups carry weight and are routinely upheld by English Court, but they must meet certain conditions, be crafted carefully and with thorough preparation by legal professionals. For affluent or globally connected couples considering entering into a prenup, obtaining legal and tax advice early is essential.
What Is a Prenuptial Agreement? (And What It Can Do)
A prenuptial agreement (prenup) is a legal document made before marriage or civil partnership, laying out how assets, liabilities, and financial rights will be treated if the marriage ends. Commonly addressed issues include:
Which assets remain “separate”
How jointly acquired property will be divided
Treatment of business interests, investments, shares, trusts
Spousal maintenance or its waiver
Debts and liabilities
Inheritance gifts, family money, and gifts from parents
However, prenups cannot reliably govern child maintenance or child arrangements (sometimes informally referred to as custody) — the court must always decide those based on the child’s best interests at that time.
Are Prenups Enforceable in England & Wales?
Not Automatically Binding, But Persuasive
Prenups are not automatically legally binding in England and Wales. Courts retain discretion. However, since the Supreme Court judgment in Radmacher v Granatino (2010), properly executed prenups carry significant weight when fairness and procedure are satisfied.
In this case the court held that a prenup should be upheld “unless in the circumstances prevailing it would not be fair to do so.”
Key Criteria the Court Considers
To uphold a prenup, courts typically consider the following factors:
Full disclosure of both parties’ assets and liabilities, or certainly that the financial disclosure promised to one another was actually provided
Independent legal advice for each party
That both parties entered freely, without undue pressure or duress
That the prenup was signed in good time (not at the last minute), although this does not automatically make a prenup unfair
Fairness overall in effect, including protection for any children or vulnerable spouse
That its outcome doesn’t produce manifest injustice given any change in circumstances
If one or more of these conditions is deficient or lacking, a court may either disregard the agreement, modify parts of it, or reduce its weight overall.
Differences Between Prenups and Postnups
Prenups are entered into before marriage.
Postnups are made after the marriage has begun.
Legally, the distinction lies mostly in timing. Both types aim to clarify financial rights. In principle, a postnup is treated in the same way — if it meets the same safeguards of disclosure, advice, fairness, and voluntariness.
What Can and Can’t Be Covered in a Prenup
What Can Be Covered
Separate property (before marriage / inheritances)
Business interests, shares, trusts
Income, bonuses, share options and other long term incentive arrangements
Debts and liabilities
Spousal maintenance (waiver or formula)
Treatment of family money, gifts, inheritances
Review clauses, sunset clauses, fallback provisions
What Cannot Reliably Be Covered
Child maintenance, custody, or arrangements (provisions can be included but they are always subject to court’s discretion)
Terms that are grossly unfair or that leave a spouse destitute
Provisions contrary to public policy
Conditions that are impossible or speculative
A well-drafted prenup will avoid overreaching and include safety nets (fallback clauses) so that if a provision fails, the remainder may still stand.
International Prenups & Overseas Asset Protection
If either partner has foreign nationality, lives abroad, or holds assets overseas, you need to consider:
Which country’s law governs the agreement.
Choose a governing law clause carefully (e.g. English law vs. foreign law).
Some countries automatically apply their own matrimonial property regime regardless of what you choose.
Jurisdiction clauses.
Specify which courts should deal with any disputes (English courts, or elsewhere).
However, in family law, jurisdiction can’t always be contracted out — the court may still decide it has authority.
Recognition in other countries.
If you might live or divorce abroad, the agreement should be reviewed for enforceability in those countries too.
A “mirror agreement” (a second prenup drafted under the other country’s law) is often advisable.
For international couples, such as those where one or more has a foreign nationality, where one is living abroad, or if parties have assets or ties across jurisdictions, prenups raise additional challenges and advice should be taken in all of the relevant jurisdictions. Points to note:
Recognition of an international prenup: A foreign prenup is not guaranteed to be enforceable in England. Courts will still assess its impact by English fairness standards, although whether the agreement is valid and binding in that foreign jurisdiction will be a significant factor.
Choice of law/jurisdiction clauses: These can help, but they cannot bind English courts if they decline to apply foreign law.
Mirror or dual prenups: Drafting a version under the foreign jurisdiction and a parallel one under English law can strengthen enforceability.
Overseas assets: A prenup can help protect overseas holdings by declaring them separate property, but only if the foreign jurisdiction respects that separation.
Converting foreign marriage contracts: In some cases, couples convert foreign marital contracts into English postnups to align with English courts’ expectations.
In practice, careful drafting by lawyers experienced in dealing with cross-border family law issues is essential.
How to Draft & Finalise a Prenup — The Process
Step 1: Raise the Topic Early
Discuss prenups well in advance — not in the final days before a wedding.
Step 2: Financial Disclosure
Decide on the scope of financial disclosure required for you both in order to enter into the agreement and then make sure you comply with it (in particular, see the case of Helliwell v Erstwistle). Disclosure is likely to require comprehensive, list all assets, liabilities, income , trust interests, business interests and future prospects including inheritance.
Step 3: Independent Advice & Negotiation
In almost all circumstances, each partner should obtain independent legal advice. Negotiate transparently and fairly — no surprises or coercion and pressure.
Step 4: Drafting the Agreement
Instruct experienced family lawyers to draft a bespoke agreement to suit your individual circumstances.
Step 5: Review, Amend & Clarify
Ensure each party fully understands the terms. Adjust if necessary. Ensure your legal representative provides you with comprehensive advice on the law generally and the terms of your agreement specifically.
Step 6: Execution in Deed Form
Sign in presence of witnesses, well in advance of marriage.
Step 7: Store & Review
Keep original signed documents safe; consider reviewing periodically, especially after major life changes (children, wealth changes).
In high net worth or international contexts, tax advisers, valuation experts, and possibly foreign legal advice may be needed – we have an extensive network of family lawyers abroad if you need assistance.
How to Fight or Challenge a Prenup
A prenup may be challenged wholly or partially. Grounds include:
Non-disclosure: Hidden or undervalued assets
Lack of independent legal advice
Duress or unfair pressure
Unfair terms or inability to meet basic needs
Significant changed circumstances rendering terms unreasonable
When challenged, a court may strike out problematic clauses but preserve others or vary the terms of the prenup. In more extreme cases, the Court can disregard the prenup entirely. Inclusion of fallback clauses supports survival of valid parts.
Dos & Don’ts of Prenups
Dos
Engage in discussions with your partner early
Seek legal advice as soon as possible
Disclose fully and transparently
Be fair in considering your partner’s needs
Use fallback/safety provisions
Consider reviewing periodically
Don’ts
Surprise your partner at the last minute
Use boilerplate or template documents – they may not afford you full protection
Assume a prenup is invulnerable
Pressure or coerce
Forget to consider updating after major changes
Expectations & Myths Around Prenups
Myth: A prenup is worthless — Reality: It can carry significant weight if properly drafted
Myth: Prenups always protect everything — Reality: Courts may override unfair clauses
Myth: Only the rich need prenups — Reality: clarity benefits many
Myth: A prenup means distrust — Reality: Many see it as smart planning
Confidentiality, Family Money & Full Disclosure
Prenups often contain confidentiality or nondisclosure clauses to protect sensitive financial information.
They can address family money, gifts, parental contributions, or trusts, specifying how they will be treated.
Full financial disclosure is the foundation: failure to reveal assets is a common ground for challenge.
Do I Need a Lawyer for a Prenup? And Should I Accept My Partner’s Proposal?
Yes, you do. Ideally each party should have independent legal advice to maximise enforceability. Without it, a court is more likely to set the agreement aside.
If your partner proposes a prenup:
Seek independent advice
Insist on full disclosure
Negotiate terms that protect you fairly
Don’t sign under any pressure
Will a Prenup Protect My Wealth — Realistically?
A well-prepared prenup can offer substantial protection — ring-fencing inheritance, business interests, or overseas assets. But courts may deviate from strict terms if fairness demands. It may not protect 100% in every scenario, but it guides outcomes and often tips the balance.
Prenups: Frequently Asked Questions (FAQs)
Are prenups enforceable in England?
Not automatically — English courts can enforce a prenup if it meets criteria like disclosure, fairness, independent advice, and free consent.
Will a prenup protect me in a divorce?
Yes — if well drafted, it helps protect premarital or inherited assets, business interests, and sets rules for future gains and support. Courts may nonetheless override or vary unfair terms.
How can I challenge a prenup?
By showing non-disclosure, lack of legal advice, coercion, unfair terms, or that circumstances changed significantly.
Do international prenups work?
Potentially — but foreign prenups aren’t automatically enforced in England. Drafting parallel agreements and aligning with local law improves chances
Do I need a lawyer for a prenup?
Yes — independent legal advice is strong recommended for both parties for validity and enforceability.
Should I accept a prenup if my partner asks?
Only if you receive independent legal advice, full disclosure, and you consider its terms are fair. Don’t sign under pressure.
Are there confidentiality clauses in prenups?
Yes, often included to protect financial privacy and sensitive disclosures.
What must a prenup include?
Asset lists, liabilities, maintainable provisions, fallback plans, review triggers, fairness safeguards.
Do prenups cover children?
No. Child maintenance and custody decisions remain with the court and are outside prenup scope.
Prenups – Final Thoughts
Prenuptial agreements can be among your best tools for preserving wealth, reducing uncertainty, and protecting family interests — especially in high-net-worth scenarios. But their value depends entirely on careful drafting, fair negotiation, full disclosure, early advice, and strategic foresight.
At Ribet Myles, we specialise in bespoke prenuptial agreements tailored to complex assets, international exposure, business interests for high net worth couples. Our team advises on enforcement strategy, cross-border issues, tax implications, and long-term review. If you're considering a prenup or postnup, get in touch early for a confidential consultation. Your future financial security is worth planning for.
Call us today on 020 7242 6000 to get started.