When planning to marry, many couples turn their attention to prenuptial agreements (often referred to simply as ‘prenups’) to help clarify how their financial affairs will be managed in the event of a divorce. Although prenups are not technically legally binding in England and Wales, courts do take them into serious consideration, particularly when both parties have entered into them freely and openly, with full disclosure of their respective financial positions and have had legal advice.
There is, however, a great deal of confusion about what can and cannot be included in a prenup. This blog focuses on the elements that are best excluded from these agreements and explains why they are unenforceable or inappropriate in the eyes of the court. By understanding these nuances, you and your partner will be in a better position to draft a robust agreement that stands the best chance of being upheld, should you ever need it.
Understanding Prenups in the UK
Before delving into what cannot be included, it is worth revisiting the basic function of a prenuptial agreement in England and Wales. In most cases, a prenup aims to:
- Identify and protect assets acquired before the marriage.
- Determine how newly acquired assets will be divided during the marriage and in the event of a divorce.
- Record financial arrangements such as spousal maintenance.
- Outline each partner’s obligations regarding any joint or individual debts.
Crucially, the courts in England and Wales are required to ensure that any financial settlement in a divorce is fair to both parties. This means that even if a prenuptial agreement has been signed, the court can still vary the terms of the agreement if it deems them to be unfair or inadequate (particularly in relation to children).
Why Certain Provisions Are Not Permitted
Although prenups can be quite flexible, allowing couples to determine matters like what happens to a jointly owned property, how business interests should be protected, or how savings and inherited wealth are to be distributed, there are certain subjects that must be avoided. The law recognises that child welfare and certain personal matters should not be pre-determined in a legal contract.
In this way, the legal system safeguards children’s interests and ensures that personal lifestyle choices remain private or are decided jointly between spouses. Additionally, British courts are reluctant to enforce clauses that might be contrary to public policy, immoral, or simply impractical.
What Cannot Be Included in a Prenup
Below are the key areas that cannot—or should not—be covered in a prenuptial agreement in England and Wales:
- Child Arrangements and Child Support
Under the Children Act 1989, the courts maintain ultimate oversight of any arrangements relating to children, including which parent a child lives with, how much time the child spends with each parent, and the level of child maintenance. Therefore, a prenup cannot predetermine child custody or maintenance arrangements. Even if couples attempt to include such clauses, the court will set them aside in favour of arrangements that serve the child’s best interests at the time of any future separation or divorce. - Visitation Rights and Child-Related Lifestyle Choices
Provisions relating to a child’s education, religious upbringing, day-to-day activities, or healthcare choices cannot be set out in a legally binding manner in a prenuptial agreement. If parents cannot agree between themselves at the time of separation, the courts will address and decide on the child’s welfare based on the child’s best interests rather than on what might have been agreed before marriage. - Illegal Provisions
No agreement can include clauses that require either party to break the law. Any attempt to impose or incentivise unlawful activities would render that part of the prenup void or severely undermine its validity. - Personal or Lifestyle Clauses
While some couples may wish to detail expectations around chores, household expenses (beyond reasonable financial planning), or frequency of intimacy, these are considered personal lifestyle choices rather than financial matters. Courts are unlikely to uphold or enforce lifestyle clauses that do not directly affect financial matters. For example, specifying who must do the washing-up, or how often you must holiday together, is not something a court would enforce in a divorce. - Penalties for Infidelity or Behavioural Matters
Clauses that attempt to impose financial penalties for unfaithful behaviour or for wrongdoing that has no direct financial component are generally seen as punitive and outside the scope of a prenup. Marriage is viewed as a partnership that should not be policed through legally binding moral or ethical codes. - Provisions That Adversely Affect Children’s Needs
Even if you do not explicitly mention child custody or support, any clause that effectively compromises the financial well-being or inheritance rights of a child could be disregarded. The welfare of children is paramount in the eyes of British courts. - Clauses that Contradict Public Policy
British courts will not uphold agreements that undermine public policy. This extends to anything that might encourage divorce or go against social and moral norms—such as clauses that incentivise or reward behaviour viewed as contrary to public interest.
Common Misconceptions About Prenups
One of the most frequent misconceptions is that a prenuptial agreement can address every potential issue or dispute that might arise in a marriage. In reality, prenups are intended to deal primarily with financial and property matters. They should clarify what each party is bringing into the marriage, how any jointly acquired assets will be dealt with, and how debts and liabilities will be handled.
Another misconception is that child-related clauses might be included as long as they are ‘reasonable.’ The court, however, remains the final decision-maker regarding any matter that affects children. If the agreement fails to meet a child’s needs, the court will override its terms.
Example Table: Permitted vs. Prohibited Clauses
Below is a quick reference table illustrating the general distinctions between provisions that can appear in a prenup and those that cannot.
| Permitted Clauses | Prohibited Clauses |
|---|---|
| Outlining each spouse’s premarital assets | Determining child custody or the amount of child support |
| Arrangements for spousal maintenance | Personal or lifestyle clauses (e.g., household chores, frequency of travel, visitation rights of extended family) |
| Division of assets acquired during the marriage | Financial penalties for infidelity or ‘moral’ wrongdoing |
| Treatment of any future inheritance | Any provisions requiring illegal acts or contradicting public policy |
| Management and ownership of a business | Clauses that infringe upon the well-being or inheritance rights of dependent children |
| Handling of individual debts | Clauses that provide no scope for fairness (e.g., completely disinheriting or impoverishing one spouse without good reason) |
Drafting a Comprehensive and Fair Prenup
While there are clear limitations on what you can include in a prenup, it is still possible to draft a thorough agreement that covers the essential financial aspects of your marriage. By doing so, you can significantly reduce the likelihood of disagreements if the relationship unfortunately ends.
Steps to ensure your prenup is taken seriously by the courts include:
- Full Financial Disclosure: Both parties should be transparent about their earnings, assets, debts, and potential future interests. If the court finds that one party has not disclosed material facts, the agreement may be set aside.
- Independent Legal Advice: Each partner should seek independent legal advice from a solicitor. This ensures both parties understand the implications of the agreement and are signing it of their own free will.
- No Pressure or Duress: Prenups should be finalised well before the wedding (ideally at least 28 days prior). Rushed signatures shortly before the ceremony could be perceived as signing under pressure.
- Consider the Welfare of Children: Any existing or future children should be adequately provided for, or the court is likely to intervene.
- Regular Review: Circumstances change over time (for example, a new business, inheritance, or the birth of a child). Regularly revisiting and updating the prenuptial agreement can help ensure it remains relevant and fair.
The Importance of Specialist Advice
Prenuptial agreements can be invaluable in safeguarding personal or family assets, as well as clarifying the financial ground rules for a couple’s life together. However, a poorly constructed agreement—particularly one that attempts to regulate child matters or introduces personal or punitive clauses—may end up being partially or completely unenforceable.
Specialist family law solicitors can help you navigate these complexities, ensuring that your prenup accurately reflects your intentions while adhering to the legal framework. This expertise is especially crucial if there are significant assets at stake, blended families, or overseas properties.
Moving Forward
While you cannot include child custody terms, personal lifestyle clauses, or illegal provisions in your prenup, there is plenty of scope to outline how you and your partner wish to manage your finances and assets. By focusing on what is permissible—and seeking professional advice—you can create a prenuptial agreement that reduces the likelihood of costly and stressful disputes if your marriage were to break down.