Victoria Cannon, partner and head of family law at Hugh James, considers whether the government’s proposals to make certain nuptial agreements legally binding could transform prenups from a family law precaution into a central part of succession planning and family governance.
The government’s proposals to make certain nuptial agreements legally binding could transform prenups from a family law precaution into a central part of succession planning and family governance. For wealthy families, business owners, trustees and family offices, the reforms raise an important question: should marriage now be treated as a formal wealth-planning event?
For families seeking to preserve inherited wealth, business interests and assets intended for future generations, marriage has always presented a degree of financial uncertainty.
A carefully prepared prenuptial agreement can help establish how inherited assets, family businesses, investment portfolios and pre-marital wealth should be treated if a marriage ends. However, such agreements are not currently legally binding in England and Wales. The court retains broad discretion to decide whether the outcome is fair. That may be about to change.
The Ministry of Justice’s consultation, A fairer end to relationships, proposes the introduction of legally binding ‘qualifying nuptial agreements’. If enacted, the reforms could give couples much greater control over the financial consequences of divorce, provided that strict safeguards are followed and each party’s essential financial needs remain protected.
For HNW and UHNW families, this is not simply a technical development in divorce law. It could change how families approach inheritance, succession, business ownership and the transfer of wealth between generations.
The current law
When a marriage or civil partnership ends, the courts of England and Wales have broad powers to redistribute the parties’ assets and income.
Under section 25 of the Matrimonial Causes Act 1973, the court must consider all the circumstances of the case, giving first consideration to the welfare of any child of the family under the age of 18. Circumstances include the parties’ resources, financial needs, standard of living, ages, duration of the marriage, contributions and any physical or mental disability. A prenuptial agreement cannot currently remove that discretion.
Nevertheless, the importance of nuptial agreements increased considerably following the Supreme Court’s decision in Radmacher v Granatino. The Court established that an agreement should generally be upheld where it has been freely entered into by parties who properly understood its implications, unless it would be unfair to hold them to it in the circumstances prevailing at the time of divorce.
The practical result is that a properly prepared agreement can already carry significant and, in some cases, decisive weight. However, the court retains its discretion, and the outcome remains dependent on an assessment of fairness.
For families trying to preserve intergenerational wealth, the court’s discretion generates uncertainty. Even a carefully drafted agreement cannot guarantee that inherited or pre-marital assets will be excluded from a future financial settlement.
The government’s proposals
On 5 June 2026, the Ministry of Justice launched its consultation, A fairer end to relationships, which proposes substantial reform of the law governing financial arrangements on divorce and dissolution. Among its most significant proposals is the introduction of legally binding “qualifying nuptial agreements”. These would allow couples to make binding arrangements concerning the financial consequences of divorce or dissolution.
Unlike an ordinary prenuptial agreement under the present system, under the proposed framework, a qualifying nuptial agreement would operate as an enforceable contract and would not generally be subject to the court’s usual discretionary redistribution of assets. The court would, however, retain its power where the agreement failed to make adequate provision for financial needs. A qualifying nuptial agreement could not prevent the court from making appropriate provision for a child.
Even under the proposed framework, parties would not be able to contract out of meeting each other’s financial needs. The Government is considering whether “needs” should be interpreted more narrowly where a qualifying nuptial agreement exists than in an ordinary financial remedy case. Housing, capital, income and pension requirements could still be addressed, so far as the parties’ resources allow and with reference to the lifestyle enjoyed during the marriage.
The proposals indicate a potentially important change in the balance between judicial discretion and individual financial autonomy.
This shift would be fundamental as it would allow couples greater freedom to determine what should happen to their wealth, provided that prescribed safeguards are observed and essential needs are protected.
Formal safeguards
The government proposes a number of formal safeguards. A qualifying nuptial agreement would need to constitute a valid contract, free from undue influence, misrepresentation and other factors affecting contractual validity; be executed as a deed; contain a signed statement confirming that both parties understand that the agreement will restrict the court’s usual powers; not be entered into within the 28 days immediately preceding the wedding or civil partnership ceremony; follow disclosure of material financial information by both parties; be supported by independent legal advice for each party.
The consultation also proposes that a party should not be permitted to waive the requirements for financial disclosure or independent legal advice. Any later variation of the agreement would have to satisfy the same safeguards.
For high-net-worth families, compliance would therefore be more than a procedural exercise and would likely require detailed disclosure and specialist valuation advice.
Therefore, the proposed 28-day period would be a statutory minimum rather than a recommended timetable. Leaving negotiations until shortly before the ceremony may create practical difficulties and increase the risk of later allegations of pressure or coercion.
The government also proposes codifying the existing principle that pre-marital cohabitation may be treated as part of the overall duration of the marriage where the relationship continues seamlessly into marriage. This creates an additional reason not to postpone financial planning until the wedding is imminent. Couples who have already lived together for several years may have shared homes, investments and expenses in ways that make the distinction between separate and joint property more difficult to establish. A cohabitation agreement may therefore be appropriate before marriage, followed by a prenuptial agreement once a wedding is planned.
Inherited wealth and the risk of matrimonialisation
The consultation also proposes statutory definitions of matrimonial and non-matrimonial property.
Matrimonial property generally represents wealth created through the parties’ common endeavours during the marriage. Non-matrimonial property typically includes assets owned before the marriage and property received from an external source by inheritance or gift.
The consultation draws on the Supreme Court’s decision in Standish v Standish, which confirmed that the sharing principle applies to matrimonial property rather than non-matrimonial property. It also recognised that the way an asset is used and treated during the marriage may cause it to become ‘matrimonialised’.
A prenuptial agreement can help record the parties’ intentions towards inherited or pre-marital assets before those boundaries become blurred. It should, however, be supported by sensible asset management throughout the marriage. An agreement identifying property as separate may be less effective if, in practice, that property is repeatedly treated as a shared family resource.
Protecting family businesses
For business-owning families, divorce can present risks extending beyond the couple themselves. A financial claim may affect company shares, voting rights, liquidity, dividend policies or long-term succession plans. It may also create pressure for the sale or transfer of assets where much of the family’s wealth is tied up in an operating business.
A carefully structured nuptial agreement can identify the ownership and intended treatment of business interests. It can distinguish the underlying value brought into the marriage from any subsequent growth and establish how liquidity should be provided without unnecessarily disrupting the business.
Care is nevertheless required. The process must remain the couple’s own informed decision, not that of family offices, business partners or shareholders. The proposed requirement for independent legal advice will reinforce the importance of allowing each party sufficient time and freedom to negotiate.
Trust interests
A prenuptial agreement cannot bind trustees who are not parties to it, nor can it determine how trust assets will be treated by the court.
It can, however, provide contemporaneous evidence of the parties’ understanding of the trust, the purpose for which it was established and whether distributions were intended to support the wider family or a particular beneficiary.
The agreement should be considered alongside the relevant trust documentation.
Seeking advice
The consultation closes on 14 August 2026 and has not yet changed the law. Existing prenuptial and postnuptial agreements remain subject to the current principles, including the court’s overriding assessment of fairness.
However, families should not wait for legislation reform before taking advice.
Those planning a marriage should begin discussions early, obtain independent legal advice and prepare comprehensive financial disclosure. Existing agreements should be reviewed following significant changes, including the birth of a child, receipt of a substantial inheritance, a business sale, a significant change in the parties’ respective wealth, the creation or restructuring of a trust, or a prolonged period of cohabitation or a change in the family’s living arrangements.
Families should also preserve evidence showing the source and treatment of inherited or pre-marital assets. This may include valuations, trust records, company documents and statements showing that separate wealth has not been mixed unnecessarily with matrimonial property.
For internationally mobile families, it is important to be aware that some jurisdictions already treat marital agreements as binding, while others reserve broader powers to their courts. An agreement prepared solely by reference to one country’s law may not achieve the intended outcome elsewhere. Coordinated advice may be required in each relevant jurisdiction. In some cases, parallel or mirror agreements may be useful, although care must be taken to avoid inconsistency between documents.
A move towards greater autonomy
The proposed introduction of qualifying nuptial agreements could represent one of the most significant developments in financial remedies law for a generation.
It could give couples greater freedom to decide how their wealth should be treated and provide families with a more effective way to protect assets intended for future generations. But greater enforceability should not be confused with absolute certainty.
Needs will still matter and children will still require protection. Questions may remain about disclosure, coercion, changing circumstances and international enforceability. Trusts, companies and other third parties will not automatically be bound.
The real value of reform may therefore lie not in making prenups unchallengeable, but in making outcomes more predictable where couples have planned carefully and followed a fair process.
For the next generation of wealthy families, that could change the conversation around prenups. Rather than being viewed as an anticipation of divorce, they may increasingly be regarded as part of responsible stewardship: a way to protect family wealth while allowing couples to enter marriage with clarity, transparency and greater financial autonomy.
The Ministry of Justice’s proposals remain subject to consultation and may change before any legislation is introduced.
About the author
Victoria Cannon is a partner and head of family law at Hugh James. She specialises in providing expert guidance to high net worth clients during divorce proceedings, facilitating the resolution of intricate financial matters that may include complex assets, pensions and investments, including those held internationally. She also advises on more complex children matters and the establishment of child arrangements within the realm of private law proceedings. Victoria is also adept at offering guidance in cases involving domestic abuse and can oversee the implementation of necessary protective measures.
