28 Mar Pre-Nuptial & Post-Nuptial Agreements in the UK

Pre-Nuptial & Post-Nuptial Agreements in the UK

The ‘28-Day Rule’ and Judicial Discretion

By Arona St James Solicitors

March 2025

Pre-nuptial agreements (pre-nups) are becoming increasingly common in the UK, particularly among individuals seeking to protect their assets in the event of divorce. One widely discussed guideline is the so-called ‘28-Day Rule,’ which suggests that a pre-nup should be signed at least 28 days before the wedding. However, recent case law makes it clear that courts take a more nuanced approach, focusing on fairness rather than rigid time limits.

At the same time, post-nuptial agreements (post-nups) are gaining recognition as an alternative for couples who did not sign a pre-nup or whose circumstances have changed after marriage.

What Is the ‘28-Day Rule’?

The 28-day guideline originated from the Law Commission’s 2014 report on Matrimonial Property, Needs and Agreements, which recommended that ‘qualifying nuptial agreements’ should be invalid if signed less than 28 days before the marriage or civil partnership. The aim was to prevent undue pressure on a party signing so close to the wedding.

However, this recommendation has not been incorporated into law. The Nuptial Agreements Bill remains in draft form, meaning that UK courts do not automatically dismiss pre-nups signed within this timeframe.

How Courts Assess Pre-Nuptial Agreements

Judges do not enforce pre-nups automatically but instead assess each agreement based on fairness, voluntariness, and whether both parties fully understood its terms. Some key considerations include:

• Was the agreement entered into voluntarily, without undue pressure?
• Did both parties fully understand the financial implications?
• Was there full financial disclosure?
• Did both parties receive independent legal advice?

Recent Case Law: Pre-Nups Signed Close to the Wedding

Despite the 28-day guideline, UK courts have upheld pre-nups signed very close to the wedding in several cases:

• Versteegh v Versteegh [2018] – The Court of Appeal upheld a pre-nup signed just one day before the wedding, as both parties had discussed and understood its terms well in advance.
• SA v PA [2014] – A pre-nup signed on the eve of the wedding was enforced, even though the wife was pregnant and had only received limited legal advice.
• WC v HC [2022] – A pre-nup signed three weeks before the wedding was upheld, as both parties had negotiated it over several months and had time to reflect before signing.

Conversely, in AH v PH [2013], a pre-nup signed the day before the wedding was not enforced. This was not due to timing alone but because the wife had not received proper legal advice regarding how the agreement would affect her rights under English law.

Post-Nuptial Agreements: An Alternative to Pre-Nups

If a couple does not sign a pre-nup before the wedding or their financial circumstances change, they may consider a post-nuptial agreement (post-nup).

A post-nup is a legally binding agreement signed after marriage, setting out how assets should be divided if the relationship ends. Like pre-nups, post-nups are not automatically enforced but will generally be upheld if they are fair and both parties understood the implications.

When Should a Couple Consider a Post-Nup?

• They ran out of time before the wedding – If a pre-nup could not be finalised in time, a post-nup allows the couple to formalise their financial arrangements afterward.
• There has been a significant change in financial circumstances – Examples include receiving an inheritance, starting a business, or a major change in income.
• One partner has made financial sacrifices – For instance, if one spouse gives up work to raise children, a post-nup can protect their financial security.
• The marriage is under strain, but the couple wants to reconcile – A post-nup can provide clarity and reassurance, reducing financial disputes in case of future separation.

Recent UK Cases on Post-Nups

Courts have generally upheld post-nups where both parties entered into them freely with full understanding of their implications. Notable cases include:

• Radmacher v Granatino [2010] – The Supreme Court confirmed that both pre-nups and post-nups should be given weight, provided they are fair and each party understood the agreement.
• MacLeod v MacLeod [2008] – The Privy Council ruled that post-nups are contractually binding, giving them significant legal weight.
• Hopkins v Hopkins [2015] – The court upheld a post-nup where a wife agreed to receive a lump sum instead of making further financial claims, as she had legal advice and had entered into the agreement freely.

Should You Follow the 28-Day Rule?

While it is best practice to sign a pre-nup at least 28 days before the wedding to avoid challenges, timing alone is not determinative. Courts focus more on whether both parties entered the agreement fairly and with full understanding.

Key Takeaways for Couples Considering a Pre-Nup or Post-Nup

1. Start discussions early – The sooner a nuptial agreement is negotiated, the less likely it will be challenged on the grounds of undue pressure.
2. Ensure full financial disclosure – Hiding assets can make an agreement unenforceable.
3. Obtain independent legal advice – Each party should have their own solicitor to avoid claims of unfairness.
4. Consider a review clause – Circumstances change, so agreeing to review the agreement periodically can add strength to its enforceability.
5. If time is short, opt for a post-nup – A post-nup can be a strong alternative if a pre-nup cannot be completed before the wedding.

Although the 28-Day Rule remains a useful guideline, it is not a strict legal requirement in the UK. Courts will ultimately assess the fairness and voluntariness of a nuptial agreement rather than simply the date it was signed.

For couples who missed the opportunity to sign a pre-nup or whose circumstances have changed, a post-nuptial agreement can provide similar protections and is more likely to be upheld if drafted correctly.

For expert legal advice on pre-nuptial or post-nuptial agreements, contact Arona St James Solicitors, where our experienced team can guide you through the process and ensure your agreement stands up in court.

If you need help, we are happy to assist and support you through this process.

Please get in touch with us on 0208 175 5000 or email hello@aronastjames.co.uk