The Treatment of Prenuptial Agreementsin the United States and England

Introduction

Prenuptial agreements, commonly referred to as “prenups,” are contracts established  between individuals contemplating marriage.¹ This article compares the cultural, judicial, and  statutory approaches to prenuptial agreements in the United States and the United Kingdom,  proposing statutory reform in the UK to align its current statutory scheme with updated  judicial and cultural interpretations of marriage and assessment of financial provisions upon  divorce. 

US Pre-Nuptial Agreements

The view on prenuptial agreements in the United States was like that in the UK, and  for the same religious and state-oriented reasons, they were not generally used or accepted  until the 1970s. The Florida Supreme Court in Posner v Posner² was the first to hold prenups  as presumptively valid, and they are now available in all 50 states,³albeit with differing  enforcement standards.⁴ Most U.S. states have adopted the Uniform Premarital Agreement  Act (UPAA)⁵ or its revised form, the Uniform Premarital and Marital Agreements Act  (UPMAA). Under this model, a pre-nuptial agreement is generally binding unless it was not  executed voluntarily, was unconscionable at the time of execution, or was entered into  without fair and reasonable disclosure of assets.⁶ Unlike England, fairness at enforcement is  irrelevant under the UPAA, and only procedural fairness at execution is considered.⁷ While  the UPMAA allows courts to address subsequent unfairness and changing circumstances, this has only been adopted in two states. This approach prioritises autonomy⁸and treats spouses  as autonomous risk-bearers.⁹

However, critics argue that the UPAA framework insufficiently addresses the  relational inequality often present in the negotiation of pre-nuptial agreements, particularly in  cases involving emotional dependence, economic disparity, or cultural pressures.¹⁰ Moreover,  the decentralised nature of U.S. family law compounds the problem, as the standards for  voluntariness, disclosure, and unconscionability vary across states,¹¹ leading to inconsistent  outcomes and forum shopping.¹² Therefore, the U.S. model demonstrates the value of  codification and a strong presumption in favour of enforceability,¹³ but also illustrates the  dangers of side-lining substantive fairness entirely. This insight has significant implications  for English law reform, indicating that the most coherent approach is not simply to adopt the  UPMAA wholesale, but to craft a statutory scheme that retains autonomy as the default rule,  but introduces a statutory fairness safeguard that applies only in cases of manifest inequality  or hardship.

UK Pre-Nuptial Agreements 

Under section 25 of the Matrimonial Causes Act 1973, courts must consider all the  circumstances of the case when determining financial provisions upon divorce, giving first  regard to the welfare of any children of the family, and then assess factors such as each  party’s income and earning capacity, financial needs and obligations, standard of living  during the marriage, etc.¹⁴ Before 2010, pre-nuptial agreements in the UK were usually  ignored because they were seen as undermining the institution of marriage by anticipating divorce¹⁵ and therefore against public policy.¹⁶ Another common reason given was the belief  that one cannot reasonably make promises about future circumstances and assets.¹⁷

However, in Radmacher v Granatino [2010], the Supreme Court stated a prenup may be enforceable if both parties enter it freely and with full understanding of its implications,  unless the court considers that, in the event of divorce, it would be “manifestly unfair” to  enforce the agreement.¹⁸ This case sought to realign the law with “changed social attitudes,”¹⁹ which acknowledges that “divorce is a statistical commonplace”²⁰ and leaves the  responsibility for upholding the sanctity of marriage with the state rather than individuals.  However, this consistent use of judicial discretion when awarding financial orders upon  divorce contrasts sharply with the approach taken to other types of agreements and the  general focus on autonomy in English contract law, with commercial courts generally  refusing to save parties who entered a “bad bargain” of their free will.²¹ In K v K (Ancillary  Relief: Prenuptial Agreement), the court gave limited weight to a German prenup signed  shortly before marriage, demonstrating a focus on fairness even where foreign law applied.²²

The autonomy gap between prenups and other contracts is often justified by the belief  that parties to romantic relationships may not have equal bargaining power, emotional  detachment, or foresight,²³ thus making prenups potentially exploitative or outdated by the  time of divorce.²⁴ This mirrors contract law’s treatment of special relationships involving  inequality or reliance, as in undue influence or fiduciary settings.²⁵ However, such judicial  discretion creates legal uncertainty and a rejection of contractual autonomy that risks this area of law becoming “paternalistic and patronising.”²⁶ The court’s power in this area also  weakens the purpose of pre-nuptial agreements in protecting assets and blurs the distinction  between contract and equitable relief. The UK’s more cautious stance prioritises flexibility  over certainty but risks deterring reliance on such agreements altogether, as a common reason  for couples not following through on prenups is fact there is “no guaranteed outcome” even  for carefully drafted agreements.²⁷

UK Reform

Although the Matrimonial Causes Act 1973 provides the statutory framework for  financial provision upon divorce, it contains no express provisions governing pre-nuptial  agreements. Their legal status remains determined by judicial interpretation within section  25’s open-ended discretion, and as Lady Hale noted when Radmacher altered the orthodox  approach, “the law of marital agreements is in a mess.”²⁸ In the absence of further legislation,  this observation remains valid.²⁹ Furthermore, while Radmacher v Granatino represented a  turning point in the legal recognition of prenuptial agreements, it remains rooted in an  atypical, high-net-worth context. Jane Mair notes that focusing on these “big money” cases  risks obscuring the realities of ordinary couples, where unequal bargaining power³⁰ and lack  of access to legal advice are more common.³¹

Under an imagined statutory reform, a pre-nuptial agreement would be presumed  enforceable if entered voluntarily, with full disclosure and independent legal advice, and at  least twenty-eight days before the marriage.³² This presumption could be rebutted if  enforcement would cause obvious unfairness, especially concerning a spouse’s financial  needs³³ or the welfare of children.³⁴ This mirrors the Law Commission’s proposal for enforceable prenups without automatic judicial discretion, rebuttable only if enforcement  would be manifestly unfair.³⁵ Codifying these principles would create clearer legal rules for  practitioners to advise clients upon and give certainty to parties to manage their finances using a mechanism they know will be given force.³⁶

Conclusion

The English approach to prenups affords essential judicial oversight but lacks clarity  and coherence, while the American framework delivers certainty at the cost of potentially  unjust outcomes.³⁷ A hybrid statutory model, drawing on the procedural safeguards of the  UPMAA while preserving a narrowly defined fairness exception, represents a principled  middle path. In codifying such a scheme, English law would bring necessary coherence to  this area of family law³⁸ and even “strengthen marriage as an institution.”³⁹

Reference(S):

Works Cited

Statutes

Colo Rev Stat § 14‐2‐301 et seq

Matrimonial Causes Act 1973

N.D. Cent. Code § 14‐03.2‐01 et seq

Uniform Premarital Agreement Act 9C ULA 35 (2001 and Supp 2014) Cases

K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120

MacLeod v MacLeod [2008] UKPC 64, [2009] 1 FLR 641

Posner v Posner, 233 So 2d 381 (Fla 1970)

Radmacher v Granatino [2010] UKSC 42

Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 Wood v Sureterm Direct Ltd & Capita Insurance Services Ltd [2015] EWCA Civ 839 Secondary Sources

Atwood BA and Bix BH, ‘A New Uniform Law for Premarital and Marital  Agreements’ (2012) 46 Fam LQ 313

Biemiller C, ‘The Uncertain Enforceability of Prenuptial Agreements: Why the  “Extreme” Approach in Pennsylvania Is the Right Approach for Review’ (2013) 6  Drexel L Rev 133

Clark B, ‘Prenuptial Contracts in English Law: Capricious Outcomes or Legislative  Clarification?’ (2010) 32 JSWFL 238

Dalling SJ, ‘Regulating Prenuptial Agreements: Balancing Autonomy and Protection’  (2013) Durham University

Developments in the Law—The Law of Marriage and Family (2003) 116 Harv L Rev  1996

Eldridge J, ‘Lawful-Act Duress and Marital Agreements’ (2018) 77 CLJ 34

Foran M, ‘Discrimination and Manifestation of Belief: Higgs v Farmor’s School’  (2024) 53(2) Ind Law J 285

Gilmore S and Glennon L, Hayes & Williams’ Family Law (7th edn, OUP 2020)

Hitchings E, ‘A Study of the Views and Approaches of Family Practitioners  Concerning Marital Property Agreements: Research Report for the Law Commission’  (University of Bristol 2011)

Hodgson R, ‘Pre-Marital Agreements’ in Roiya Hodgson (ed), Family Law (12th edn,  OUP 2021)

Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343,  2014)

Leeson PT and Pierson J, ‘Prenups’ (2016) 45 J Legal Stud 367

Mair J, ‘The Marriage Contract: Radmacher v Granatino’ (2011) 15 Edin LR 265

Mosey B, ‘How Ante-Nuptial Agreements Perpetuate Male Dominance: A Critical  Feminist Analysis of Radmacher v Granatino [2010] UKSC 42’ (2021) 4 De Lege  Ferenda 50

Patterson E, ‘Contextualising the Law on Pre-Nuptial Agreements in England: A  Comparative Study and a Proposal for Reform’ (2024) 5 York L Rev 63

Robinson C, ‘Pre-nuptial Agreements—the End of Romance or an Invaluable Weapon  in the Wealth Protection Armoury?’ (2007) 13 Trusts & Trustees 207