Lucy Theobald at The Family Law Company examines a recent high-profile divorce case which has drawn national attention, not only for its eye-watering settlement of over £230 million ($307 million), but for the legal and ethical principles it highlighted.

It what appears to be the third-largest divorce award in English legal history, Lucy Theobald (pictured), director at The Family Law Company, examines the case. The editors are pleased to share these insights; the usual editorial disclaimers apply to views of guest writers. To comment, email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

The couple in question had been married for 20 years before introducing a post-nuptial agreement in 2023. The terms, heavily weighted in the husband’s favour, were expected by him to be upheld. But the court took a different view. The judge found the agreement to be neither complete nor conclusive, ultimately ruling that it had been secured under pressure and through coercive behaviour.

The judge underlined the husband’s attempt to undermine his wife’s trust in her legal representation by using scare tactics; a strategy which backfired. Such behaviour clearly compromised the wife's ability to exercise her free will, severely weakening any chance of the terms of the agreement to be taken into consideration by the court.

This case, and its outcome, serves as a blunt reminder that no matter the scale of wealth involved, fairness must underpin any financial settlement. When one party attempts to impose their will, especially through intimidation, manipulation or by obstructing access to sound legal counsel, the integrity of any agreement is at risk.

It’s not uncommon in high net worth relationships for one spouse, typically the more financially successful party, to exert undue influence. Scornful suggestions that lawyers can’t be trusted or “this will only cost us more in fees,” are likely to chip away at the other’s confidence. Subtle threats may even be made, perhaps in the form of inferences that pursuing legal advice or rejecting a proposed agreement will come at a personal or financial cost.

Ascertaining conclusively that undue pressure has been applied may appear difficult, particularly if one party is unfamiliar with legal terminology, or English is not their first language. However, an experienced legal team will painstakingly strive to uncover if coercion has been applied.

Courts take such dynamics seriously. If coercion is found to be a factor and a spouse’s consent is shown to have been compromised, then even a formally signed agreement may carry little legal weight. Judges are not persuaded by wealth or status. They are guided by fairness.

As unlikely as it sounds, it is entirely plausible for a spouse to accept an agreement that isn’t in their favour in full understanding of the implications. However, should such a consent order be filed, a judge is extremely likely to request firm evidence that the spouse has genuinely agreed to the terms. 

It is important to note that English law does not currently recognise post-nuptial agreements as legally binding. However, if the legal conditions are met and an agreement reached without pressure then courts are more likely to take it into consideration. In the aforementioned case, the judge remarked that had both parties been "properly advised by independent lawyers," the court would have been "slow to interfere."

With that in mind, what does best practice look like?

A fair post-nuptial agreement should:

-- Be drafted by a lawyer experienced in family and matrimonial law;

-- Include full and frank disclosure of assets, liabilities, income, and expenditure from both parties;

-- Be signed voluntarily by both parties, without coercion or undue influence;

-- Be written, not oral; and

-- Be built on terms that are fair and reasonable.

Ideally, each party should instruct their own solicitor. Collaborative law and mediation can also support constructive communication, ensuring that any agreement is not only legally robust, but also ethically sound.

It is not uncommon for a spouse to suggest to their former partner that lawyers are only interested in their fees; however, in this case, the husband's undermining of the wife’s relationship with her lawyer ultimately contributed to costs in the region of £5.5 million, a figure that could have been significantly reduced had the process been approached openly and fairly from the outset.

Above all, this judgment is a powerful reminder that wealth does not bestow immunity from the law. The courts will always prioritise fairness. Those entering into any form of marital agreement would do well to remember that playing fair isn’t just morally right, it’s legally prudent too and can prevent years of acrimony, anger, upset – and potentially unwanted publicity.