By 
Success story
Eleven weeks before her wedding, a woman opened an email from her fiancé’s lawyer with a prenup attached. She printed it and circled three clauses in red. She asked us what cannot be included in a prenup in the UK, and whether signing would bind her to all of it.
A prenup that tried to settle the whole future
He had built up a small business and owned the flat they shared. She had a salaried job, a pension and savings from before they met. Both hoped for children.
Most of the document dealt with property. Three clauses did not. One said any children would live with him after a separation. Another barred either of them from ever claiming maintenance, for themselves or a child. The third was a cheating clause. Whoever had an affair would leave with only what they brought in, plus a fixed sum to the other.
Her fiancé called it routine. She wanted no row before the wedding, yet she would not sign what she did not understand.
What cannot be included in a prenup in the UK?
Prenups have no binding force under any statute in England and Wales. The Law Commission’s 2014 report on matrimonial property, needs and agreements says such agreements are not currently enforceable. Nor can a prenup take away either person’s right to ask the court for financial orders.
On the report’s account, a court should follow a prenup both people signed freely, fully aware of what it meant, unless holding them to it would not be fair.
Section 1(1) of the Children Act 1989 makes a child’s welfare the court’s paramount consideration in any question about their upbringing. So a clause about where children live cannot settle a later child arrangements order.
Under section 9 of the Child Support Act 1991, a prenup cannot stop a parent applying for a maintenance calculation, and any clause restricting that right is void.
Maintenance bans and a cheating clause in a prenup
A lifelong ban on spousal maintenance is weaker than it looks. Section 25 of the Matrimonial Causes Act 1973 makes the court look at each person’s financial needs. Where there is a child of the family under 18, that child’s welfare gets first consideration. The Law Commission notes that whether a court follows a prenup depends partly on how it provides for need.
The cheating clause faced a further problem. Since April 2022, divorce has been no fault, and the court must accept a statement that the marriage has broken down irretrievably as conclusive. On money, section 25(2)(g) counts conduct only if ignoring it would be inequitable. Her fiancé’s clause priced any affair, with no such test.
Which clauses in a prenup we advised her to drop
We went through every line with her. A court can weigh clauses about property; the rest tried to settle questions the law keeps open.
We advised her to ask for the children, cheating and maintenance clauses to come out of the prenup. A judge later asking whether the agreement was fair would read every line.
Nobody had attached any financial disclosure. So we helped her list her savings and pension, and ask for his business accounts and a valuation of the flat. She also needed time. The Law Commission recommended that binding prenups require disclosure and legal advice for both people, and no signing in the 28 days before the wedding. Those proposals are not law, but we used them as her benchmark.
The agreement they signed
His lawyer accepted every change within a fortnight and sent the accounts and valuation. The prenup they signed covered only money and property. His business and flat stayed his, and her savings and pension stayed hers. They would share equally any home bought together. Both asset schedules sit at the back, with a review clause for when they have a child.
It said nothing about children, maintenance or affairs. She signed six weeks before the wedding, and each of them had separate advice.
No prenup comes with a guarantee. On any divorce, a court will still look at fairness and at both their needs. We have altered some details to protect her privacy.
Before you sign: a checklist for this week
Mark any clauses in a prenup about children, child maintenance, a lifelong maintenance ban or a penalty for an affair. Ask about each before you sign. If you have already signed one, its clauses about children still cannot bind a court.
Ask for full financial disclosure with documents, and give the same yourself.
Take your own legal advice, separate from your partner’s lawyer, and keep the letter.
Save every copy and every email about it, and delete or edit nothing.
Make changes only in the agreement, with advice, never by text or side letter, and say nothing online.
Allow time: sign well over 28 days before the wedding.
Review the agreement with advice after a child or an inheritance.
“A court reads a prenup at the time of any divorce, so the test is whether it still meets both people’s needs then. Keep a short note of why each clause is there, with the disclosure behind it, so a judge can see it was understood. The government consulted in 2026 on making some nuptial agreements binding, but until the law changes, a court decides in each case how much weight a prenup carries.”
Garry Steedman, Family Law Consultant (Divorce, Children & TOLATA), Kabir Family Law
Been asked to sign a prenup?
If your partner wants you to sign a prenup, speak to us first and bring their version. In a free, confidential consultation, we will explain what cannot be included in a prenup in the UK. See our guides to prenuptial agreements and nuptial agreements, and read how we prepare these success stories.
The legal issue
Eleven weeks before her wedding, a woman received a prenup from her fiancé's lawyer. Her fiancé called it routine. He owned a small business and the flat they shared; she had a salaried job, a pension and savings from before they met. Most of the document dealt with property, but three clauses went further. Any children would live with him after a separation, neither of them could ever claim maintenance for themselves or a child, and whoever had an affair would leave with only what they brought in, plus a fixed sum to the other. She wanted no row before the wedding, but she would not sign what she did not understand.
The law this rests on
- No statute in England and Wales gives a prenuptial agreement binding force. The Law Commission's report Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) says such agreements cannot be enforced as contracts and cannot take away the parties' ability to ask the court to make financial orders, nor the court's powers to make them.
- The courts' current approach, as the Law Commission summarises it: an agreement that each person entered freely, with a full appreciation of its implications, should be given effect unless holding them to it would not be fair in the circumstances. Whether a court follows an agreement depends partly on the provision it makes for need.
- Children Act 1989 s.1(1): a court deciding where a child lives, or any other question about a child's upbringing, must make the child's welfare its paramount consideration.
- Child Support Act 1991 s.9(3) and (4): subject to limited exceptions in sections 4(10)(a) and (ab) and 7(10), a maintenance agreement does not prevent a party applying for a maintenance calculation for a child, and any provision in an agreement that purports to restrict that right is void.
- Matrimonial Causes Act 1973 s.25(1): where there is a child of the family under 18, the court gives first consideration to that child's welfare. s.25(2)(b): the court has regard to each party's financial needs, obligations and responsibilities, now and in the foreseeable future. s.25(2)(g): conduct counts if, in the court's opinion, it would be inequitable to disregard it.
- Matrimonial Causes Act 1973 s.1(2) and (3), in force from 6 April 2022: the applicant states that the marriage has broken down irretrievably, and the court must treat that statement as conclusive evidence and make a divorce order.
- Law Commission recommendations (2014), not enacted: a qualifying nuptial agreement would be a deed, signed outside the 28 days immediately before the wedding, after disclosure of material information and legal advice for both people, and could not contract out of meeting financial needs.
- Ministry of Justice consultation, A fairer end to relationships, open from 5 June to 14 August 2026: it asked for views on introducing qualifying nuptial agreements, which would let couples make binding financial arrangements before any divorce or dissolution. The consultation has closed and the Ministry is analysing the responses. The Government has said the final reforms will follow when parliamentary time allows. Nothing has been enacted, so no statute yet makes a prenup binding and the law set out above still applies.
How we approached it
We went through the agreement with her line by line, separating clauses about property, which a court can weigh, from terms that tried to settle questions the law keeps open. We advised her to ask for the children, cheating and maintenance clauses to come out, because a judge asking later whether the agreement was fair would read every line.
Nobody had attached any financial disclosure, so we helped her list her savings and pension and ask for his business accounts and a valuation of the flat. We used the Law Commission's recommended safeguards as her benchmark: disclosure and legal advice for both people, and no signing in the 28 days before the wedding. Those proposals are not law, but they gave her a clear standard to ask for.
The outcome
Her fiancé's lawyer accepted every change within a fortnight and sent the business accounts and a valuation of the flat. The signed prenup covered only money and property: his business and flat stayed his, her savings and pension stayed hers, and they would share equally any home bought together. Both asset schedules sit at the back, with a review clause for when they have a child. It included nothing about children, maintenance or affairs. She signed six weeks before the wedding, and he had his own lawyer throughout. No prenup comes with a guarantee: on any divorce, a court will still look at fairness and at both their needs.
What to take from this
- A prenup is not binding by statute in England and Wales, and it cannot remove either person's right to ask the court for financial orders.
- A clause about where children will live cannot settle the matter, because the court decides on the child's welfare. A clause that tries to stop a parent applying for a child maintenance calculation is void.
- A lifelong maintenance ban or a penalty for cheating cannot bind the court. It still looks at each person's needs, and it takes conduct into account only if ignoring it would be inequitable.
- Ask for full financial disclosure, take your own advice, save every copy, and sign well over 28 days before the wedding.
Checked and approved for publication by Hannah Overton.
Last reviewed .
