Prenups: what the TV dramas get right and wrong

If you have watched Sky’s latest drama War, you might have seen the cardboard box marked ‘Prenup’ and the weight the characters place on it. It makes for good television. But does a prenup really hold that much power in real life?

The short answer is that it is more complicated than what TV dramas suggest. In this blog, our divorce and separation solicitors explain what the law actually says about prenuptial and postnuptial agreements.

Myth 1: ‘A prenup is legally binding’

Not quite. In England and Wales, a prenuptial agreement is not automatically binding, even if you had it drafted by a solicitor. If a couple divorces, the court has the final say on how their finances are divided, even where they are in agreement over the asset division.

That said, a prenup is far from worthless. Since the Supreme Court decision in Radmacher v Granatino in 2010, courts will usually give a nuptial agreement decisive weight if it was entered into freely, with a full understanding of what it means, and if it would not be unfair to hold the couple to it.

A court is unlikely to uphold an agreement that leaves one person unable to meet their reasonable needs, or the needs of any children.

A prenup is more likely to carry weight if:

• Both people took their own independent legal advice
• Both disclosed full and honest information about their finances, including those tied to a business
• Neither felt pressured to sign
• It was signed well before the wedding (28 days is the most common benchmark)

Myth 2: ‘Prenups are only for the wealthy’

This is one of the most common misconceptions about nuptial agreements: people presume they’re only for the super-rich or super-famous. In reality, you do not need a fortune for a prenup to make sense.

Prenups are useful where:

• Parents have helped with a house deposit
• One person has received, or expects, an inheritance
• One person owns a business or has a share in a family company
• Either person has children from a previous relationship
• One person owned property before the marriage
• One person has a significant pension, and the other does not
• One partner earns much more than the other

A prenup is about protecting what each person brings into the marriage and agreeing in advance what should happen if things end. That matters whether you have a two-bed semi-detached house or a large property portfolio.

Myth 3: ‘You can only make a prenup before the wedding’

Many people are surprised that couples can sign a nuptial agreement after they are married. This is called a postnuptial agreement (rather than prenuptial). The same legal principles apply, including the need for legal advice and full financial disclosure.

But why would you make one after marriage rather than before? People often consider a postnup when something changes post-marriage, such as:

• Starting or buying into a business
• Receiving an (unexpected) inheritance
• A house move funded by family money

Similar agreements are available for civil partners, and cohabitation agreements can help unmarried couples who want clarity on who owns what.

Myth 4: ‘Having a prenup means you don’t expect the marriage to last’

Not at all. For many couples, a prenup is simply sensible planning, in the same way as writing a Will or taking out home insurance. No one wants to claim on their insurance, but it provides peace of mind should the worst happen.

Having the conversation early can also be healthy. Talking openly about money, expectations and what matters to each of you can build trust. And if the relationship does end, having an agreement already in place can reduce conflict, cost and stress at a very difficult time.

Myth 5: ‘A prenup can decide what happens with the children’

No, a prenup cannot outline what should happen with child arrangements. Where children live and how much time they spend with each parent is decided by looking at what is best for the child, not by what the parents signed before the wedding.

A prenup can deal with money and property, but it cannot set the rules for parenting.

Myth 6: ‘A template from the internet will do’

It is tempting to download a free template or ask AI to draft a nuptial agreement, but the details are what give a prenup or postnup its weight. Whether both sides had proper legal advice, whether disclosure was complete, how the agreement is drafted and when it was signed all affect how much notice a court takes of it.

Does an affair invalidate a prenup?

In TV drama War, Carla (played by Sienna Miller) claims that Morgan (Dominic West) has broken the terms of their prenup by having an affair. In reality, penalty clauses (for an affair or anything else) in a nuptial agreement are not legally enforceable (at least in England and Wales). The family court views infidelity as personal behaviour rather than financial, which is what a prenup or postnup focuses on.

So, what really happens with the prenup in divorce?

Unlike what you might see on TV, your divorce lawyer will not come to your first meeting and dump a heavy box labelled ‘Prenup’ on the table. In England and Wales, a prenup or postnup is not a guarantee, but it can be very persuasive when it is done properly, whether that’s before or after marriage.

It’s also important to note that a prenuptial or postnuptial agreement should not be used to threaten the other ‘side’. The idea of nuptial agreements is that they help ensure a fair division of finances and property.

When to get a prenup before marriage

For prenuptial agreements, it is important to leave sufficient time for it to be drafted and for each party to seek their own advice before the 28-day period. Making an appointment two months before your wedding is not enough time.

Contact our prenuptial agreement solicitors

If you are getting married or entering a civil partnership, it’s worth thinking about whether a nuptial agreement is appropriate. If one of you owns a business or has money or dependents from outside your relationship, a prenuptial agreement could be a good idea.

Speak to our family law solicitors by calling 0117 325 2929 or fill out our online enquiry form.

A note on Scotland: the law in Scotland is slightly different. Agreements between spouses are generally treated more like ordinary contracts and are more likely to be enforced, although a court can set one aside if it was not fair and reasonable when it was made.