Prenuptial agreement barristers.
Specialist counsel for drafting, review and enforceability advice on pre-nuptial and post-nuptial agreements. Fixed fees agreed in writing, direct access accepted.
A well-drafted prenuptial agreement is one of the most valuable pieces of legal work anyone entering a marriage with significant assets, a family business, a trust interest or an expected inheritance will ever commission. Since the Supreme Court's decision in Radmacher v Granatino in 2010, the English court has taken pre-nuptial agreements seriously: an agreement freely entered into by both parties, with independent advice and full disclosure, that meets the parties' needs at the point of divorce, will now be given effect unless it would not be fair in the circumstances to hold the parties to it. The court still has a discretion, but the discretion is exercised in favour of upholding a properly prepared agreement.
That shift matters. It means the effort put into drafting the prenup properly, the disclosure exchanged, the advice recorded and the negotiation between the parties' lawyers, is the effort that determines whether the agreement holds up ten or twenty years later in a Financial Remedies Court. Clerk&Counsel places BSB-registered family barristers with real experience in prenup and postnup work, both drafting agreements from scratch and advising on the enforceability of existing agreements where a client is now facing divorce.
We do not charge clients for using our service. Our fees are paid by the barrister as a percentage of their fee for sourcing and onboarding the client and carrying out admin work on the case. Clients are never obliged to instruct the barrister we introduce and are actively encouraged to compare counsel before deciding.
The legal framework since Radmacher.
Before 2010, prenups were regarded as contrary to public policy in England and Wales and were routinely disregarded. The Supreme Court decision in Radmacher v Granatino changed that. The majority held that the court should give effect to a nuptial agreement freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to it. The Law Commission has since recommended putting qualifying nuptial agreements onto a statutory footing, but the case law remains the working framework.
The direction of travel from the Family Division and the Court of Appeal since Radmacher has been to uphold well-prepared prenups and to police only the fairness of outcome at the point of divorce. Where an agreement leaves a party in real need, the court will make provision to meet that need, but will otherwise respect the parties' bargain. That is a strong reason to invest in getting the prenup right.
What good prenup drafting looks like.
A well-drafted prenup is much more than a template. It reflects the parties' actual asset positions, sets out what is to be treated as separate property and what is to be treated as matrimonial, addresses the treatment of income earned during the marriage, deals with the treatment of any home the parties buy together, provides for needs on separation (housing, income, any children) and includes a review mechanism triggered by material life events such as the birth of a child, retirement or serious illness.
The counsel we place will typically begin with a scoping conference, gather the disclosure required from the client, advise on how each asset category should be treated, produce a first draft, negotiate with the other side's independent legal adviser and finalise the document ready for execution at least 28 days before the wedding. On postnups the process is essentially the same, with the difference that there is no wedding-day deadline and the negotiation can be paced more comfortably.
- Prenup drafting from scratch with financial disclosure and negotiation between counsel.
- Prenup review where one party has produced a draft and the other needs independent advice before signing.
- Postnuptial agreement drafting during marriage, on reconciliation, or following a material change in circumstances.
- Separation agreements pending divorce, capturing an interim financial arrangement.
- Enforceability advice where a client is now facing divorce and a prenup or postnup is on the table.
- Negotiation and drafting of variations to existing agreements to reflect new assets, children or business interests.
Who really needs a prenup.
Prenups are no longer the preserve of the ultra-wealthy. The clients who benefit most from a prenup include: business owners and company directors with shareholdings they want to protect; beneficiaries of family trusts who need to demonstrate a clear intention that trust interests remain non-matrimonial; individuals expecting a substantial inheritance who want that inheritance ring-fenced; parties entering a second marriage who want to protect assets built up during a first marriage or reserve provision for children of the first marriage; and parties with significant pre-marital wealth or pension provision.
For any of these clients, a properly drafted prenup is measured in low tens of thousands of pounds against the potential downside of a contested financial remedy claim, which in a HNW case can run into the hundreds of thousands of pounds in fees alone before the assets themselves are decided.
Briefing us on a prenup.
When you brief us on a prenup or postnup, we:
- Run conflict checks and confirm we can act for you and not the other party.
- Shortlist counsel with real prenup drafting experience, matched to the complexity of the assets and any international element.
- Confirm fixed fees in writing for the scoping conference, the draft, the negotiation phase and the signing conference.
- Handle Public Access client care paperwork digitally.
- Coordinate with the other party's independent lawyer to ensure the enforceability requirements are met.
Specialist areas within this practice.
Wedding on the horizon or postnup on your mind?
Send a short brief with the wedding date, an outline of the assets to be protected and any existing draft. A clerk will come back with shortlisted counsel and fixed fees.
Common questions.
Are prenuptial agreements legally binding in the UK?
A properly executed prenuptial agreement is not strictly binding on the English court, but since the Supreme Court decision in Radmacher v Granatino in 2010 the court will give effect to a pre-nuptial or post-nuptial agreement that was freely entered into by both parties with a full appreciation of its implications, unless in the circumstances at the time of the divorce it would not be fair to hold the parties to it. In practice, well-drafted prenups signed by well-advised parties are being upheld routinely.
What makes a prenuptial agreement enforceable?
The core requirements are full financial disclosure by both parties, independent legal advice on each side, execution at least 28 days before the wedding, no duress or undue pressure, and terms that meet the needs of both parties and any children if held to strictly. A prenup that leaves one party in real need at the point of divorce is much more likely to be departed from than one that provides fairly for needs while ring-fencing pre-marital and non-matrimonial wealth.
When should we start drafting a prenup?
As early as possible. The 28-day rule is a floor, not a target. Serious prenup work involves financial disclosure, negotiation between counsel on each side and multiple drafts. Starting three to six months before the wedding is realistic; starting six weeks before is uncomfortable and starting three weeks before is a real risk to enforceability.
Can I instruct a barrister directly for a prenup?
Yes. Public Access is well-suited to prenup and postnup work: the transaction is discrete, the disclosure is finite and there is no litigation on foot. Counsel can advise on structure, draft the agreement, negotiate terms with the other side's counsel or solicitor and attend a signing conference. Both parties must have independent advice, so counsel will not act for both sides.
Do I need a prenup if I have a family business or trust interest?
If you hold shares in a family business, are a beneficiary of a family trust, expect to inherit substantial assets or have already built significant pre-marital wealth, a prenup is one of the most cost-effective pieces of legal work you will ever do. It sets out the treatment of those assets in the event of divorce and provides clear evidence of intent that the English court will give real weight to.
What is a postnuptial agreement and when is it appropriate?
A post-nuptial agreement is entered into after the wedding. It is treated on essentially the same principles as a prenup following the case of MacLeod v MacLeod and Radmacher, and is often used where a prenup was never signed, where there has been a material change in circumstances during the marriage, or where the parties are reconciling after a separation.