How can vulnerable individuals be protected financially when getting married and is a pre-nuptial agreement the answer?

25 February 2020

In this blog we consider whether a pre-nuptial agreement is a good option to help protect the estates of vulnerable individuals in the event that their marriage should come to an end.


Many of our deputyship clients have substantial estates generated during their lifetime or from clinical negligence/personal injury awards. We often work alongside our clients throughout their lives and see them achieve different milestones such as getting married. Whilst pre-nuptial agreements are not legally binding, it is important to consider them, especially in the case of people with larger estates, to offer them a level of protection in case they divorce their spouse or partner.

What is a pre-nuptial agreement?

A pre-nuptial agreement is a legal agreement entered into before marriage, setting out how a couple intends financial matters between them to be resolved in the event that the marriage ends in divorce. The current English legal position is that these agreements do not oust the courts’ powers to make financial orders deciding on the appropriate division of assets or income provision on divorce, but that the existence of the agreement is a relevant circumstance of the case on divorce, the importance of which will be weighed by the judge.

In the landmark case of Radmacher v Granatino (2010), the Supreme Court  held that the court should give effect to a pre-nuptial agreement that was:

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 their agreement.”

Since this case, judges are more likely to uphold or attribute significant weight to a pre-nuptial agreement, so long as that test is met. The burden will be on the person seeking to depart from the agreement to demonstrate why it should not be upheld by the court, such as by proving that they entered into the agreement under duress, or without a proper understanding of what they are signing, or that upholding the agreement would leave one of the parties in a predicament of real need, while the other is comfortably provided for. As a result, many pre-nuptial agreements are now upheld by the English courts, despite judges technically having the power to depart from them.

Do you need to have capacity to enter into a pre-nuptial agreement?

Capacity is considered on a case by case basis: it is decision specific[1] and capacity to marry has a low threshold[2] in comparison to having testamentary capacity. It is of course possible for a person who lacks capacity to manage their affairs, to have capacity to marry and to also enter into a pre-nuptial agreement.

Capacity to sign a pre-nuptial agreement is linked to whether the person in question has or can have access to their financial information and is aware of the full extent of their assets. A recent case[3] confirmed that a person could still enter into a pre-nuptial agreement even if they were not fully aware of their estate – however, it is difficult to see how this could happen without the person having some knowledge of their assets. It is not usually a sufficient reason for a deputy/attorney to withhold financial information because they think that the person in question will become more vulnerable with this knowledge.

Specific considerations for vulnerable individuals entering into a pre-nuptial agreement

Where an individual lacks capacity to manage their financial affairs, particular consideration will need to be given when entering into the pre-nuptial agreement to certain factors, such as the existence of duress and their understanding of what it is that they are giving up by entering into the agreement. If that individual is the financially stronger party, the motivation for the agreement may well be self-evidently to preserve funds set aside to meet their additional financial needs, but where they are the financially weaker party, additional steps will need to be taken to explore the circumstances surrounding the proposed pre-nuptial agreement, and whether its proposed terms will meet their particular current and future needs.


Whilst pre-nuptial agreements will not always be upheld by judges upon divorce, they will be upheld in appropriate circumstances and do therefore provide an important mechanism to protect wealth in the event of a divorce and this should be a serious consideration for those looking after the financial affairs of someone who lacks capacity.

It should also be noted that, if a pre-nuptial agreement has not been entered into, in appropriate circumstances legal recognition will still be given upon divorce to an individual’s particular financial needs and the source of any funds they own by way of settlement award. Equally, couples who have not yet taken the decision to divorce do have the option of entering into a post-nuptial agreement instead, something which may prove particularly useful where capacity issues develop post-marriage. It therefore remains important to seek early legal advice as to how to approach these issues. Approaching a law firm with both private client and family law experience ensures that advice encompasses both fields and is tailored to the particular needs of the individual with capacity issues.

Further information

If you are affected by any of the issues covered in this blog or if you have any questions, please contact a member of our court of protection & deputyship and family & divorce teams, who have longstanding experience in advising clients in cases involving capacity, wealth protection and matrimonial proceedings.


About the authors

Sameena Munir is a solicitor in our private client team. She has a Court of Protection focus and works closely with clients who lack capacity.  She prepares statutory will and gift applications to the Court, and creates personal injury trusts.  She also advises on lasting powers of attorney and probate matters.

Cate Maguire is an associate in the Family Team. She advises clients on matters including divorce and civil partnership dissolution, associated financial issues and issues surrounding children. She has particular expertise in complex jurisdictional issues and financial matters. She has a clear understanding of the particular issues facing international families. She also has a wealth of experience in dealing with complex trust and corporate structures and issues of company values, both in relation to domestic and cross-jurisdictional entities.


[1] The Mental Capacity Act 2005 sets out the test: can the person understand, retain, use and weigh information relevant to the specific decision? If they cannot, is this because of an impairment of or a disturbance in the functioning of the mind or brain?

[2] Does the person understand the broad nature of a marriage contract, the duties and responsibilities that come with a marriage including financial duties, the essence of marriage is for two people to live together and to love each other, and they must not lack capacity to enter into sexual relations.

[3] PBM v TGT & X Local Authority [2019] EWCOP 6

Latest blogs & news

IHT - no news is surely good news?

While IHT escaped major changes in the Autumn Budget the Chancellor could be tempted to tweak the framework for IHT in future, writes James Ward. But what playbook would he use?

How UK Capital Gains Tax is applied to UK property when non-UK resident spouses divorce

As non-UK tax residents, the couple will be subject to special rules for calculating the capital gains tax (“CGT”) due in relation to either the sale or transfer of their UK property.

New French Forced Heirship law likely to breach EU Succession Regulation

Our well regarded French contact* has warned us that a new law just passed in France is going to cause problems for Anglo / French succession planning. Under the laws of England and Wales, all individuals have testamentary freedom and can leave their estate to whomever they choose under the terms of their will. 

Trans people who lack mental capacity – How are decisions relating to transitioning made?

Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.

Realising Crypto Gains outside the UK

With the price of crypto assets generally making a good recovery from the Covid-19 related decline of 2019 contrasted with the very recent volatility following issues with the adoption of the cryptocurrency as legal tender in El Salvador, investors in cryptocurrencies might be considering realising some of their gains to try to help minimise any further instability.  

Does the law on predatory marriage need to change?

In recent years there have been calls for a change in the law to protect vulnerable adults from falling victim to what has become known as “predatory marriage”. This is due to a rise in cases where fraudsters have married vulnerable and often elderly individuals, without the knowledge of their loved ones.

Modernisation of Lasting Powers of Attorney – What does the future hold?

The Office of the Public Guardian (OPG) and the Ministry of Justice are working together to modernise the process of making and registering Lasting Powers of Attorney (LPAs). The consultation is open to the public and will remain open until 13 October 2021. 

HMRC no longer reviewing Family Investment Companies

Good news – The “secret” specialist HMRC unit set up in 2019 to examine the tax avoidance risks has been wound up after finding no evidence of correlation between the use of FICs and non-compliant behaviour.

#FreeBritney - How her sad case would never happen in the UK

Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence. 

Financial Abuse – how to spot the signs

There are several reasons why someone may need the assistance of a financial deputy, stemming from incapacity due to an accident or a consequence of old age. There is however a darker side to this type of work that Court of Protection lawyers are seeing more and more of. This relates to those who have suffered some form of financial abuse and/or undue influence.

Managing compensation after a spinal injury

After a spinal injury the long-term impact on your life and that of your families can be significant. You may need a care package, a new home or adaptations to their existing accommodation, therapies and specialised equipment.

Death in the digital age – continuing your online life

The pandemic has changed the world – there is no doubt we are all “online” far more now than before. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to those ‘should never have been posted university photos‘. We collect and share moments of our lives in the digital world.

Should I set up a joint lasting power of attorney for my mother?

In the latest edition of the Financial Times Money Q&A, Jemma Garside, senior associate in our private client team answers a question: "Should I set up a joint lasting power of attorney for my mother?"

I am an attorney – can I make gifts on behalf of a donor?

Subject to any restrictions or conditions in the Lasting Power of Attorney (“LPA”), a property and affairs attorney can make gifts on the donor’s behalf to the donor’s friends, family members or acquaintances on customary occasions. 

Going through a divorce? Don’t forget to update your Will!

Going through a divorce process is stressful. There are lots of things to think about and one of these is likely to be what you should do to protect your hard-earned money.

I’m an attorney under a Lasting Power of Attorney – what happens next?

A donor must have the mental capacity to make a Lasting Power of Attorney (“LPA”) for property and affairs and health and care. The completed LPA is then sent to the Office of the Public Guardian (the “OPG”) for registration. Each page of the registered LPA will be stamped with ‘VALIDATED-OPG’.

Business LPAs - How to safeguard against a future incapacitated partner, director or shareholder?

As a business owner/shareholder, what would happen to your business if you were unable to make decisions – would someone be able to authorise payments or enter into contracts and keep the business running? 

The importance of seeking support from your employer when going through a divorce

The breakdown of a relationship is a challenging and stressful time, even when you and your partner are on relatively good terms.

There are a number of support services we recommend to help manage the strain which comes with relationship breakdown and the significant changes to your and your children’s circumstances. People often go first to friends and family and then perhaps to a lawyer, counsellor or financial advisor. Many people do not feel comfortable talking to their employer about their circumstances and in this blog, we explore how it can be important from both a personal as well as family law and employment law perspectives.

Lasting Powers of Attorneys for business and professional affairs

Lasting Powers of Attorney (LPAs) are vitally important documents. Our previous blogs have touched upon what LPAs are and top tips for anyone planning on putting an LPA in place. Most individuals should at least put in place a financial LPA to cover their home and personal finances. It is however a good idea in some cases to have a second financial LPA.

Don’t make an awful year even worse…Separation and Capital Gains tax

The last 12 months have put an awful lot of pressure on the family unit and sadly this has led to a spike in separation and divorce amongst married couples. With the end of the tax year fast approaching (last day Monday 5th April – Easter Monday) it is timely to consider the tax consequences of separations.

Choose a specialist area:

Family and Divorce

Recognised nationally and internationally as one of the best family law teams for our expertise in both finance and cases relating to children.

Private Client

We are an internationally recognised private client team working with entrepreneurs, business owners, investors and City professionals.

Prenuptial Agreements

Prenuptial agreements are increasingly being upheld by the Courts and it is essential that you sign up expecting to be bound by it. If you are being asked to sign an agreement, you will need to understand the rights you are giving up by entering into it.

Prenuptial Agreements - Frequently Asked Questions

Drawing on our experience, we have answered some frequently asked questions around prenuptial agreements.

Court of Protection and Deputyship

Our expert team can help you or a loved one overcome the challenges of illness, old age or a personal injury or medical negligence.

Court of Protection and Deputyship FAQs

The Court of Protection helps people no longer capable of making their own decisions, usually by authorising the appointment of a deputy.

Professional Deputyship Service

We are regularly appointed by the Court of Protection to act as a professional deputy for individuals who lack capacity.

Appointing a Deputy

If you lose capacity and have not already made a Power of Attorney, you may have to apply to the Court of Protection to appoint a deputy.

Supporting Deputies

Becoming a deputy is only the first part of a long journey. As specialists in Court of Protection work we can support you in this important role.

Changing your Deputy

If you lack capacity and need the support of a deputy to manage your financial affairs, it is essential that you work with the right person.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility