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Pre-nuptial agreements are not binding under legislation in England and Wales but can have decisive weight on divorce provided they are not unfair. Pressure is mounting for reform, because it is not always clear when the court will determine when an agreement is unfair. However, circumspection is needed before introducing legislation that would make such agreements binding. There are gaps in what we know about pre- and post-nuptial agreements on the ground. There are no data on how the current judge-made law on nuptial agreements is applied (or even  if  it is applied) outside the context of the ‘big money’ case. This article uses new interview data with barristers and FDR judges to explore these unreported nuptial agreements. It presents six findings that reveal much that is not apparent in big money cases, while informing key questions such as whether nuptial agreements should be made binding, if there might be unintended consequences of reform, and how fairness could be facilitated if legislation were to be introduced.

Unreported nuptial agreements in England and Wales