Since the seminal case of Radmacher v Granatino [2010] UKSC 42 in 2010, pre and post-nuptial agreements have been increasingly adopted under English law and they are now relatively common amongst wealthy spouses. Despite the “magnetic importance” of nuptial agreements, there has historically been a great deal of uncertainty as to whether or not a nuptial agreement will ultimately be upheld, as it must have been “freely entered into” by both parties with a “full appreciation if its implications”.
The agreement is then subject to a further sense test that it must not be “unfair” to hold the parties to the agreement “in the prevailing circumstances at the time of the divorce”. Such uncertainty obviously undermines the very purpose of a nuptial agreement which can, in some circumstances, give rise to more complex and expensive litigation than if the nuptial agreement had never been entered into.
Over the past year, there have been a series of high-profile judgments which have clarified the court’s approach to such agreements and which it is hoped will provide some much needed guidance and consistency on the ground.
The manner in which these cases concluded may have far-reaching consequences for high-net-worth families. It is a shift that is especially relevant as an increasing proportion of people within that category look to protect pre-acquired and inherited wealth.
Entrepreneurs, professionals and those entering second marriages should take note of the recent judgments. Taken together, they provide some helpful guidance as to how the courts will approach the implementation of nuptial agreements and the circumstances under which courts, who ultimately have discretion, may override them.
In the recent judgment of PN v SA [2025] EWFC 141, the court awarded the wife £230.78m (which is understood to be the third largest divorce settlement in English legal history), in circumstances where the husband was found to have subjected the wife to coercive control in divorce proceedings, frightening the wife into entering into a nuptial agreement which was not ultimately upheld. The court has sent a clear message that pressurising and controlling behaviour will not be tolerated and that going forward the court is likely to scrutinise the parties’ behaviour closely and from a modern point of view. The court will take into account any imbalance in the power dynamic, together with a pattern of repeated attritional conduct which might prevent a party from being able to exercise any real self-determination or free will. Much in the same way as it will consider this type of behaviour in the context of Children Act matters.
AH v BH [2024] is an example of a case when the court may depart from the terms of a nuptial agreement to meet needs (in this case of the wife and the children). In that case the court found that the nuptial agreement did not provide sufficient funds for the wife to meet her housing need and that it would be unfair for the housing provision to revert back to the husband on a Schedule 1 basis, as if they had never been married. Notwithstanding this the judge noted that absent the pre-nuptial agreement the wife would have been entitled to a much greater sum on a sharing basis. The judge also restricted the wife’s needs based claim. Had there not been an agreement, he would likely have awarded her more on a needs basis.
While the recent case of Standish v Standish [2025] UKSC did not concern a nuptial agreement, it does provide further guidance as to the treatment on divorce of “non-matrimonial property” and “matrimonial property”. In that case the husband transferred circa £80 million of assets which originated which originated from his pre-marital wealth to Mrs Standish as part of an inheritance tax mitigation strategy, intending for the funds to be settled in trusts for their children. The trusts were never established, however, and the wife retained the assets in her name at the end of the marriage. The first instance judge considered those assets matrimonialised and therefore to be shared with the wife, albeit unequally. The Court of Appeal disagreed, saying that the source of an asset, not who holds it, is critical and that while the concept of matrimonialisation still applied, it should be applied narrowly.
Mrs Standish’s overall award was reduced from £45m to £25m as a result. The Supreme Court upheld the Court of Appeal’s decision, stating definitively that the sharing principle applied only to matrimonial property (which should normally be on an equal basis). Whilst AH v BH [2024] is a reminder that anyone with financial means should consider a pre-nuptial agreement, the decision in Standish should provide some comfort for those already married who did not enter into one.
Kate Brett is a partner and Sarah Walker is a senior associate at Hughes Fowler Carruthers.
