Is it right to think Prenups are legally binding on divorce?

Navigating family law can often feel overwhelming, with many myths and misconceptions clouding the process.

At Boodle Hatfield, our experienced Family Law team understands the importance of clarity and accurate information during life’s most personal and challenging times. That’s why we’ve created our Family Law Mythbusters series—to address common misunderstandings. Partner, William Rollin explains below.

Myth – Prenups are legally binding on divorce

Since the Supreme Court’s decision in the well-known case of Radmacher in 2010, many people have fallen for the myth that prenups are legally binding. That is a dangerous myth – because there are all sorts of prenups out there – some good, some bad and some (frankly) ugly.

In practice, the existence of a prenup doesn’t mean that the prenup shall simply be implemented by the court. If the divorcing couple are in dispute about the implementation of a prenup, the court may scrutinise it through the lens of the Radmacher test:

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 three-part test is therefore (i) was it freely entered into? (ii) did the parties understand the implications of the agreement? and (iii) is the agreement fair at the time of divorce?

Lengthy studies can be written on the catalogue of court decisions on prenups in the period since 2010. For the purposes of this note – the critical mythbusting takeaway is that prenups are not automatically legally binding.

We at Boodle Hatfield regularly advise both on the creation and the implementation (or unenforceability) of pre-nups and post-nups. A ‘good’ pre-nup which is fair in all the circumstances at time of divorce may well be capable of being implemented – exactly as intended.  A ‘bad’ pre-nup on the other hand should not be implemented just because the parties signed it – if it’s not fair – it may need to be re-negotiated. Finally – an ‘ugly’ pre-nup – drafted with a punitive mindset and leaving a party in a predicament of real need – may be positively repugnant in its outcome.

So if you are talking pre-nups – please don’t make assumptions. Formal, professional advice should be taken at the earliest opportunity.