We explain why a nuptial agreement is often invaluable — but only if it is properly prepared.
This year has seen the Family Court emphasise how a properly prepared prenuptial or postnuptial agreement can prove invaluable. Recent cases highlight the implications of failing to enter into a nuptial agreement at all or entering into one that is not compliant with accepted practice.
Two recent cases, Standish v Standish and Helliwell v Entwistle involved disputes which could have been avoided if properly prepared nuptial agreements had been entered into.
When should a pre or postnuptial agreement be considered?
A prenuptial agreement should always be considered on entering a marriage or civil partnership, particularly if there is an imbalance of wealth between the parties.
It may be that one party has built up a very successful business, is entering into a second marriage or has inherited or acquired significant wealth. In such circumstances, one party may wish to retain the capital they have accumulated prior to the union in the event of a future divorce or dissolution.
Alternatively, the parties may simply wish to ‘pre-determine’ the scope of a financial settlement if the relationship ends. A prenuptial agreement can help to avoid the stress and cost of contested litigation.
Newfound wealth can also arise during a marriage or partnership: from inheritance and estate planning, windfalls such as lottery wins or the sale or restructuring of a business or other assets. Wealth protection strategies should include consideration of a postnuptial agreement, for the recipient of the wealth and for future generations of their family if lifetime estate planning is being undertaken.
Risk: Deciding not to enter a pre or postnuptial agreement
Decide in haste, repent at leisure. Some couples are reluctant to consider or implement a prenuptial agreement. What with the cost and planning required for a wedding, time pressures and the lack of romance inherent in the exercise, a prenup may be at the bottom of a long ‘to do’ list and eventually abandoned.
But this can be short-sighted, as Mr Standish discovered after years of contested litigation, cost and uncertainty due to the absence of a pre or postnuptial agreement. We explore how matters could otherwise have been addressed to avoid this risk here: Standish v Standish: Estate planning and Collaboration.
Risk: Failing to take expert advice in good time
Even if a nuptial agreement is decided upon, a further temptation might be to skimp on the advice sought, either by the party preparing the document or by the recipient of a draft produced by their intended.
The objective of a nuptial agreement is to avoid future risk, litigation, costs and stress. Like a divorce or dissolution settlement, the terms of a nuptial agreement need to be considered in detail and in good time. The agreement needs to be carefully crafted, prepared with the benefit of expert legal advice and kept under regular review as married life progresses.
Risk: Skimping on advice and cost
A decision to seek limited advice at limited cost can backfire, particularly if the wealth to be protected is considerable. Even worse, is a decision to draft a prenuptial or postnuptial agreement without full legal advice, relying instead on AI.
Risk: Failing to adhere to accepted practice and safeguards
The Supreme Court case of Radmacher v Granatino in 2010 found that prenuptial agreements can be given decisive weight in divorce (and now also dissolution) proceedings. A nuptial agreement is likely to be upheld by a court provided that the agreement was freely entered, with a full appreciation of its implications, and where the terms were not unfair in the prevailing circumstances at the time of divorce. Parties will be advised by their legal team that they can expect to be held to its terms if they enter into a prenuptial or postnuptial agreement which adheres to these criteria.
The Law Commission reported on nuptial agreements in 2014 and recommended legislative reforms to the Government to put further safeguards in place. The Law Commission recommended that agreements should only be enforceable after the financial ‘needs’ of both parties and any children have been met.
The Law Commission proposed that nuptial agreements need to comply with various conditions before they will be upheld by the court. By way of example, each of the parties has to be able to demonstrate that prior to entering into the agreement they had:
- Taken independent legal advice;
- Provided their spouse with full disclosure of their financial position; and
- Signed the agreement more than 28 days before the wedding or civil partnership.
Failure to meet those criteria presents a real risk and could result in a successful challenge on divorce or dissolution.
In Helliwell v Entwistle (2025), Ms Helliwell, was a multi-millionaire and as such a prime candidate to enter into a prenuptial agreement. which she duly did. However, she failed to:
- Ensure that her fiancé, Mr Entwistle, was able to seek independent legal advice before signing the agreement;
- Give full and frank disclosure of her resources, having expressly agreed to do so: she declared only 27% of her wealth (approximately £66 million);
- Provide for her husband’s needs in the agreement.
The prenuptial agreement was also signed on the date of their marriage.
The Court of Appeal determined that it would be unfair to hold her husband to the terms of the agreement. In fact, it was found that the agreement should not be given any effect at all. It ruled that the agreement should be vitiated and set aside as the court found that it was ‘inescapable’ that Ms Helliwell’s non-disclosure was fraudulent as she had made a deliberate decision to conceal some of her wealth.
Although Mr Entwistle would probably have received a greater share of his ex-wife’s resources in an eventual divorce settlement in order to meet his needs than was provided for in the prenuptial agreement, the very act of his entering into a nuptial agreement would have supressed his claims if his wife had given complete disclosure. However, as the nuptial agreement was vitiated, Mr Entwistle’s needs will now be assessed without reference to the terms or existence of the prenuptial agreement.
In addition, considerable damage has been sustained to Ms Helliwell’s credibility that could have been avoided. The implications of the court’s findings against Ms Helliwell are likely to influence the scope of the eventual settlement for the husband as part of the discretionary exercise under s. 25 Matrimonial Causes Act 1973.
In Helliwell v Entwistle, the facts centred on a deliberate understatement of assets by the wife. Much less frequently, a party might be tempted to ‘overstate’ their wealth, perhaps to appear ‘successful’ and avoid being seen as the poorer party in the relationship. However, they cannot later benefit from this by subsequently arguing that the provision negotiated in the prenup is insufficient to meet their needs.
Whichever the situation, the provision made in a prenuptial or postnuptial agreement for a financial settlement on divorce or dissolution can only be accurately assessed as fair or unfair if there is full disclosure and clarity about the parties’ resources. Without this, any agreement will be placed in jeopardy.
Summary
Prenuptial and post nuptial agreements continue to offer significant protection to one or both parties to a marriage. Parties can expect to be held to a prenuptial or post nuptial agreement but only if the well-rehearsed safeguards are in place. Any temptation to deviate from accepted practice is likely to create risk and have repercussions.
For more about nuptial agreements generally, see our guide to prenuptial and postnuptial agreements.
For expert guidance on nuptial agreements, contact our prenuptial agreement lawyers.
