Can you challenge a prenuptial agreement in the UK?

Nuptial agreements are (not yet) legally binding on English courts. However, there has been a steady increase in couples having them upheld by the courts either wholly or in part. The leading case is still Radmacher v Garantino (Radmacher), which set out the basic principles that divorce courts tend to follow when reviewing a prenup.  

 Radmacher highlighted that if a nuptial agreement was entered into freely, it should be considered with a “full appreciation of its implications,” unless in circumstances where it would otherwise not be fair to hold the parties to their original agreement. Indeed, the judge concluded in this leading case that “in future, it will be natural to infer that parties who entered into an ante-nuptial agreement… that effect should be given to it”. 

Recent case law has followed this principle of fairness, as established by Radmacher. At present it is most likely that a judge will find a prenuptial agreement to be legally binding if: 

Therefore, in order to challenge a prenuptial agreement, consideration should be given to whether any of these vitiating factors are missing or were not taken into account at the time of signing.  

Recent cases have refined the potential areas of challenge as the following:  

  1. Fraud or misrepresentation of assets
Case law has highlighted that it is “highly likely” that fraudulent non-disclosure will be a factor that will be considered by the authorities, and that it is more likely than not going to overturn an agreement.  

  2. Failure to give full and frank disclosure
The authorities are clear that even where there is no formal disclosure exercise there remains a duty upon the parties to be open and honest in their dealings with one another, and for them to be sufficiently well informed about their respective positions when they enter into an agreement.  

  3. Duress/undue pressure prior to signing
It must be established that the agreement was “freely entered into” by each party and with a full understanding of the implications of the agreement unless in the circumstances it would not be fair to hold the parties to account. The courts also might take into consideration a parties’ emotional state and under what pressures and or aggression he or she was under to agree it. 

  4. Agreement is plainly unfair
The courts would consider whether there had been a change of circumstances now of a kind that effectively renders the agreement “unworkable” or unfair. In considering this factor, the courts will take each party’s circumstances into account on a case-by-case basis.  

In the absence of any of the above vitiating factors, the courts are likely to uphold the agreement.  

 It is therefore important when challenging nuptial agreements to consider the circumstances before, during and after it was entered into, and whether the “financial landscape” has “changed drastically”.  

 If you would like more information on nuptial agreements, please call a member of our Family Law team who would be happy to assist on 020 7228 0017.