Pre/ post – nuptial agreement reform: what is this and what does it mean for law firms?

Article written by Leanne  Wylie

On 18th December 2024, the Law Commission published a scoping report on financial remedies on divorce and dissolution of a civil partnership. It has been concluded that there need to be reforms of the law; these reforms may take the form of four different models suggested by the Commission that range from codifying current cases law to introducing default rules to determine asset division.

Reform has been decided because, according to the report, the governing laws for financial remedy orders are now considered very old, dating back as far as 1974 with the Matrimonial Causes Act. Due to this, as well as the Law Commission finding that the law ‘does not provide a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes’, settlement is not as thoroughly promoted as needed. The models that the Law Commission presents to the Government give different ideas regarding the court’s discretion and how far a couple’s assets should be divided ‘based on clear rules’. One suggestion was the introduction of binding nuptial agreements.

How have law firms responded to the proposed reform and the idea of binding nuptial agreements?

According to the recent House of Lords Library article, ‘Law relating to prenuptial agreements’, responses have been mixed. Some law firms agree that prenuptial agreements need to become legally binding. Former Secretary of State for justice and consultant at Paynes Hicks Beach law firm, Robert Buckland, argued that couples are offered ‘peace of mind when it comes to their assets’ and remove a ‘potentially divisive issue’ with legally binding agreements. He also stated that better legislation would ‘make their legal effect crystal clear’.

Director and Family lawyer at Sinclair Law, Lucy Hart, also called for agreements to be legally binding. According to the House of Lords Library article, she argued in a recent blog post that some couples are left ‘in a state of limbo, unable to fully rely on the agreements they made in good faith’ due to the ‘lack of binding prenuptial agreements’. She agrees with the proposal of implementing binding pre-nuptial agreements as they would ‘not only align us with other modern legal systems but also provide much-needed clarity and security for couples planning their futures
together’.

Internationally recognised London law firm, Kingsley Napley, published an article in February 2025 regarding the YouGov poll they commissioned for the launch of their new Nuptial Service, following the publication of this report by Law Commision. The poll showed that 60% of the UK public supports the idea of law reform and having nuptial agreements automatically upheld on divorce. Their new Nuptial Service ‘provides advice and support for anyone wishing to write, or contest, a pre- or post- nuptial agreement’.

However, there are concerns that implementing automatic legal binding for nuptial agreements could bypass the current judicial process, where courts apply specific factors—such as financial needs, contributions, and earning capacities—to ensure tailored and fair outcomes. This change could ‘remove the need [for courts] to apply these factors, thereby removing the last layer of protection for the financially weaker party’, as quoted in the House of Lords Library article from Brabners’ senior associate, Kirsten Tomlinson. There has been emphasis on the importance of judicial discretion in protecting the more vulnerable party in a dispute and ensuring fairness during divorce or dissolution.

Thoughts on the reform are mixed; however there is no denying that discussions about changes to nuptial agreements have been long overdue. Kingsley Napley family partner Jane Keir, stated, ‘Sadly, there are no imminent plans from this Government for law changes on pre-nups, but there should be’. The jungle drums for reform in this area will only get louder.’ It will be interesting to see the Government’s eventual response to the Law Commission’s recent scoping report and whether any legal changes will come about.