A Fairer End? Gaps in the Government’s Nuptial Agreement Proposals

On 5 June 2026, the Government published the consultation document, A Fairer End to Relationships,[[1]] proposing comprehensive reform of the financial consequences of both divorce and separation for unmarried couples. While Graeme Fraser has helpfully summarised the Government’s proposals in Financial Remedies Journal,[[2]] this piece focuses specifically on the Government’s plan to introduce binding qualifying nuptial agreements (QNAs).

The case for reform is, in principle, a strong one, since greater regulation could help secure fairer outcomes for the financially weaker spouse. The Government’s holistic approach to reform also deserves recognition. This is because the impact of any nuptial agreement depends both on how needs are defined, and on the remedies available to financially vulnerable cohabitants, making it right to consider these questions together. Yet while the rationale underpinning the proposals is sound, in that the Government is seeking to preserve judicial discretion while providing greater certainty, this piece identifies the plausible negative consequences of limiting needs in the nuptial agreement context, examines what is being proposed and why, and sets out what appears to have been missed, as well as what more could be done.

1. The case for reform

Support for reform to make nuptial agreements binding under legislation is increasing as pre-nups become more mainstream. Media reports often associate nuptial agreements with economic independence. These agreements have become a symbol for some women seeking to avoid being overshadowed by their husbands. But autonomy is not synonymous with independence. It is much more complicated than that, as I have argued previously in the Financial Remedies Journal.[[3]] In practice, nuptial agreements tend to reflect the preferences of the financially dominant spouse. Where the terms constrain what the caregiving spouse can claim on divorce, her independence comes at considerable cost, potentially leaving her in a materially weaker position than her former husband. The case for binding agreements therefore rests entirely on the quality of the safeguards that accompany them.

The effects of domestic abuse, while a real problem for financial equality on divorce generally, can also be amplified by a nuptial agreement. Yet as my research has shown, abuse is often not considered to be relevant unless it can be proven at the time the agreement was signed. This is not only difficult to evidence, but it also fails to recognise how patterns of abuse over time can affect the fairness of an agreement, as well as the ability to renegotiate its terms.

Reform is also necessary because, in the absence of legislative safeguards, the case law on the meaning of needs has developed inconsistently. This matters because needs sit at the heart of any challenge to a nuptial agreement. The most effective and most commonly deployed argument against giving effect to an agreement is that to do so would leave the lesser moneyed spouse’s needs unmet. Where the meaning of needs is uncertain, so too is the protection it offers. Indeed, because needs are sometimes interpreted ‘parsimoniously’ on relationship breakdown (AH v BH [2024] EWFC 125 at [47]), nuptial agreements are already being consciously instrumentalised by some parties to suppress the level of needs to which their partner would otherwise be entitled.[[4]] Without statutory intervention, the financially weaker spouse’s needs are being assessed downwards by the terms of an agreement she may have had little real power to refuse. The result is an agreement that does not simply reduce what she would otherwise have received; it denies her the provision necessary to leave the marriage on anything approaching equal terms. Any reform that fails to confront this reality will entrench, rather than correct, the problem.

2. The Government’s holistic approach is to be commended

The Government’s decision to consider the financial consequences of divorce alongside remedies for unmarried cohabitants is significant, because it allows the proposed introduction of QNAs to be evaluated in its proper context.

The rights of unmarried cohabitants are inextricably linked to nuptial agreements, since the financially weaker spouse who is presented with a pre-nup agreement frequently faces an ultimatum: sign, or the wedding is off. If she has been living with her partner for a significant period before the marriage and refuses to sign, she is left in a position of considerable financial vulnerability – not as a divorcing spouse, but as an unmarried cohabitant with limited legal recourse. Strengthening cohabitation rights therefore has a direct bearing on the fairness of the nuptial agreement process: it could, in financial terms at least, give her meaningful leverage to challenge or renegotiate an agreement that would otherwise deny her a fair outcome on divorce. The ultimatum loses some of its force when walking away carries less financial catastrophe.

Reforming financial remedies law in tandem with nuptial agreements also gives couples more clarity about what they are contracting out of. A binding agreement made in ignorance of what the law would otherwise provide is not truly informed consent. Reform on both fronts addresses that gap.

3. The proposed legislative framework

To qualify as a binding nuptial agreement, the Government proposes that the following safeguards must be satisfied:

• the agreement must be a valid contract without, for example, undue influence or misrepresentation;
• the agreement must have been made by deed and must contain a statement signed by both parties that they understand the agreement is a qualifying nuptial agreement that will partially remove the court’s discretion to make financial orders;
• the agreement must not have been made within the 28 days immediately before the wedding or the celebration of civil partnership;
• each party to the agreement must have received, at the time of making of it, disclosure of material information about the other party’s financial situation;
• independent legal advice for each party signing the nuptial agreement, to ensure each understands the legal effect and consequences of the agreement;
• it should not be possible for a party to waive their rights to disclosure and legal advice;
• any variation of an agreement must meet the requirements listed above.

These procedural requirements mirror those proposed in the Law Commission’s 2014 Nuptial Agreements Bill. As the Law Commission itself observed in its 2024 Scoping Paper, there has been broad stakeholder support for seeing that Bill implemented.[[5]]

However, there is one important difference. The 2014 Nuptial Agreements Bill includes a substantive safeguard meaning the agreement could not contract out of needs. Needs would be determined having regard to all the circumstances of the case, giving first consideration to the needs of the children (pursuant to s 25(1) of the Matrimonial Causes Act 1973 (MCA)) and having regard to the s 25(2) MCA factors. Simply put, needs means needs as it would be interpreted by the court absent an agreement.

Conversely, the Government proposes that needs should be assessed on a ‘narrower basis’[[6]] similar to those proposed for cohabitants in the same consultation document. It does so by constructing a three-stage approach to assessing needs, that structures the existing judicial discretion to consider all the circumstances of the case. This means that after first consideration is given to the welfare of the child (stage one), the parties’ capital and income needs are assessed (stage two). Then, if resources permit, the court can consider what the Government refers to as ‘discretionary needs’ (stage three). Discretionary needs are described as relating to lifestyle ‘luxuries’ – in other words, beyond basic provision for housing and pension needs, but which a court might nonetheless consider appropriate in cases where there is a surplus of assets. All three stages are available to divorcing parties with sufficient resources, while cohabitants and spouses with a nuptial agreement are excluded from having their ‘discretionary needs’ assessed on relationship breakdown.

4. A fairer end?

These proposals represent a clear attempt to introduce greater certainty into financial remedies law while retaining judicial discretion, alongside drawing a firm dividing line between provision for spouses and cohabitants. In practice, however, the category of ‘discretionary needs’ is being asked to do two incompatible things at once: to provide flexibility in big-money divorce cases, and to preserve the privileged legal status of marriage relative to cohabitation. It is unlikely that a single legal mechanism can serve both functions effectively. More troublingly, this approach risks introducing new uncertainties while exposing the financially weaker spouse to real financial precarity simply because she has signed a nuptial agreement.

The most immediate uncertainty concerns the meaning of ‘luxury needs’. The consultation offers no precise definition of this term, and that could be seen as a pathway to extensive litigation. It may also produce a chilling effect, whereby judges anticipating such litigation may interpret needs conservatively rather than expansively, departing from the established approach of assessing needs in light of the parties’ standard of living during the marriage and the other s 25(2) factors. What counts as a luxury is entirely relative. A car that is a luxury for one couple is basic transport for another. Designer clothing that would be extravagant in one household was ordinary expenditure in another. The existing standard of living consideration exists precisely because needs cannot be assessed in the abstract, for they are always contextual. The Government’s approach risks removing this flexibility in a way that produces unfair outcomes.

The category also sits uneasily with the equal partnership principle. If marriage is an equal partnership, and the couple jointly built a certain standard of living, why should one party’s entitlement to maintain that standard be characterised as a luxury rather than a legitimate need? The framing places the lesser moneyed party in the position of the needy supplicant, instead of as someone entitled to have her relationship generated needs met expansively. As a result, parties to nuptial agreements should have access to the same needs provision as spouses and civil partners who have not entered into such agreements.

Permitting parties to contract out of needs-based provision may also carry unintended consequences. My research indicates that the requirement to meet needs can serve as an important means of leverage in the negotiation process.[[7]] Under the current law, the moneyed party, motivated by a desire to ensure the agreement has a good chance of being given effect on divorce, is incentivised to negotiate reasonably. Restricting needs could therefore erode the lesser-moneyed spouse’s bargaining power when negotiating the terms of the agreement. From this perspective, there is a certain irony in the consultation document’s proposal to ringfence discretionary needs in the name of autonomy, since this restriction is, in practice, likely to curtail it, at least for the lesser-moneyed spouse.

A further concern arises from the role needs plays under the proposed reform as the only mechanism by which the court can account for changes in circumstances between the signing of the agreement and its enforcement on divorce. Where such changes render an agreement that was procedurally fair at the outset unfair by the time of the proceedings, needs provides the sole means of redress. Restricting needs could make it plausible that unfair agreements would be given effect.[[8]]

More generally, it is also unclear whether, absent a nuptial agreement, discretionary needs are reserved exclusively for sharing cases. The phrase ‘where resources permit’ suggests this may be the case. If this is so, there is a risk that even big money cases could be refocused on needs. In the worst case, this could reintroduce something resembling the old reasonable requirements approach, entrenching the financially weaker spouse once again as a supplicant rather than an equal partner.

A restrictive interpretation of needs risks serious unfairness in practice. Since the Government does not propose homogenising the remedies available to divorcing spouses and separating cohabitants, the case for imposing a statutory limitation on needs in the nuptial agreement context is difficult to justify, given the concept of discretionary needs appears to exist precisely so that it can be withheld from cohabitants. Indeed, unless the threshold for discretionary or luxury needs is set very high, nuptial agreements are likely to generate significant wealth disparity even in modest asset cases, if stage two is interpreted to mean that provision is limited to what the court considers strictly necessary. One spouse could be left in a one-bedroom flat far from the family home while the other retains a London apartment. It would be wholly undesirable to arrive at a position where the only protection against enforcement of a nuptial agreement is a bare public welfare exception that attends only to absolute necessity, ignoring the broader remedial framework that ensures fairness, including the effective redress of relationship-generated disadvantage in a way that enables the parties to embark upon an equal start on the road to independent living (as Lady Hale famously said the objective should be in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, at [144]). It would also go against the Government’s own overarching objective – ‘achieving a fair outcome’.[[9]]

Some refinement of needs is undoubtedly necessary. Left undefined, there is a real risk that individual judges will interpret needs very conservatively in cases where a nuptial agreement exists, producing outcomes where one spouse receives only basic provision while the other retains the lion’s share of the assets. But this can be addressed through legislative reform that takes a different form from what the Government proposes. Rather than limiting needs in the nuptial agreement context, the better approach is to require that needs be calculated in precisely the same way as they would be in the absence of a nuptial agreement, as I explain more fully in my book.[[10]]

Finally, the protection of victims of domestic abuse is a central theme of the consultation, and rightly so. It is therefore essential that reforms making nuptial agreements binding do not produce the unintended consequence of allowing such agreements to become instruments of coercive control. Appeals to autonomy as a justification for limiting judicial oversight must be treated with caution unless the consultation is willing to grapple seriously with what autonomy means and how it is constrained in an abusive relationship. Reform making nuptial agreements binding must explicitly address this risk. Legislation should include a provision stipulating that evidence of domestic abuse at any point in the relationship will vitiate the agreement.

The title of the consultation document invites us to consider whether these proposals would lead to a fairer end for relationships. Without further refinement of the proposals discussed here, this may not be the case.

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[[1]]: Ministry of Justice, A fairer end to relationships: A consultation on reforming financial remedies on divorce and strengthening protections for cohabitants at the end of their relationship (CP 1581, 5 June 2026).

[[2]]: https://financialremediesjournal.com/summary-of-governments-consultation-on-fairer-end-to-relationships/

[[3]]: https://financialremediesjournal.com/pre-nuptial-agreements-a-good-route-to-autonomy/

[[4]]: S Thompson, Unreported nuptial agreements in England and Wales, (2025) 39(1) International Journal of Law, Policy and the Family ebaf016 https://doi.org/10.1093/lawfam/ebaf016.

[[5]]: Law Commission, Financial Remedies on Divorce and Dissolution: A Scoping Report (HC 460, Law Com No 417, 17 December 2024), para 7.54.

[[6]]: A fairer end to relationships, n 1, 56.

[[7]]: Unreported nuptial agreements, n 4.

[[8]]: The American Law Institute has proposed safeguards that could also account for changes in circumstance, as I have outlined previously in Financial Remedies Journal: https://financialremediesjournal.com/pre-nuptial-agreements-a-good-route-to-autonomy/.

[[9]]: A fairer end to relationships, n 1, 15.

[[10]]: S Thompson, The Road to Equal Partnership: Reforming the Financial Consequences of Divorce (BUP 2026).