According to some figures, one in five weddings start with a prenup arrangement in England and Wales. This article examines the trend and recent high-profile cases, such as that of Standish vs Standish.

The following article examines further developments of pre-nuptial agreements – important topics in marital law. The author is Jane Keir (pictured below), partner in the family and divorce team at Kingsley Napley. The editors are pleased to share these views; the usual editorial disclaimers apply. To comment, email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

Jane Keir

Exactly a year ago, in December 2024, the Law Commission published a scoping report on Financial Remedies on Divorce and Dissolution, highlighting issues and problems with the current law and proffering potential areas for reform. Sadly, the government has now deferred any consultation on this until the spring, so any actual legislative change is likely to be a long way off. In the meantime, we are left with the situation where divorce outcomes can be unfair and inconsistent, given that our courts have a wide discretion on deciding how financial resources should be divided on divorce. That is why many HNW couples are opting increasingly for the certainty provided by pre-nuptial agreements.  

What divorce headlines rarely tell is that most cases never go to court and are either decided between the parties direct, or agreement is reached by using one of the non-court dispute resolution methods, such as mediation or collaboration. Only where no agreement is possible do couples resort to the long, stressful and extremely expensive process through the court system, which can take many months if not years and, where finances are complicated, can cost hundreds of thousands of pounds.

It is in these such cases where we do need a discretionary approach to ensure fairness. It is vital that a judge has the scope to hear and see all the evidence and to be able to make up his or her mind so that justice is done. In HNW divorces there are often, for example, competing claims over what should be in the financial pot and available for division and what should be retained by each party.

Seminal case
The case of White v White in 2000 was a seminal case in changing the way assets are redistributed on divorce. All the old inherent unfairness meted out to wives (usually being the financially weaker party) was done away with because for the first time, the sharing principle became the main driver in determining cases, along with needs and compensation. Previously, where there was an excess of financial resources over financial needs, the husband (usually being the financially stronger party) kept that surplus. But in the brave new world of sharing, where there was sufficient to meet each party's needs, White pointed us in the direction of equal sharing and perceived equality.

However, it was not long after, and as is entirely predictable following any landmark judgment, that exceptions began to appear to the equal sharing principle. So, for example, a party would argue that he or she had made a greater financial contribution and that therefore, they should take out a larger share. And, of course, the duration of the marriage if short, was seen to be a factor in terms of excluding sharing and limiting the weaker party to his or her financial needs. Other and current arguments developed over the date of separation of the parties, the motivator being that all monies received post the date of separation should belong exclusively to their creator which would presumably include earnouts payable after scheme conditions were met even though entry into the scheme occurred before the date of separation. This was particularly so around the Covid lockdown periods with all the attendant difficulties in actually separating physically and changing address.

2025 landmark case
The very recent Supreme Court case of Standish v Standish [2025] UKSC 26 provided an illustration of the time and money it can take to resolve an issue of whether, the money earned/owned by one spouse remains that spouse’s separate property during the marriage, or becomes joint marital property, i.e. it becomes "matrimonialised" to use the terminology devised to describe the metamorphosis from non-marital to martial property. The case began with a contested trial in the High Court, then went up to the Court of Appeal and then to the Supreme Court, where judgement was handed down on 2 July 2025.

It turned on whether some £77.8 million ($104.5 million) of pre-acquired investment funds which Mr Standish had transferred to Mrs Standish to be held in anticipation of some tax planning advice, then became a matrimonial asset, belonging to them both, or whether it remained Mr Standish's money and therefore, non-matrimonial and his to keep post-divorce.

The total costs spent in the Standish litigation have never been made public, but it is likely that the litigation lasted some five years and cost several million pounds. In the event the Supreme Court agreed with Mr Standish that the transfer to his former wife did not convert the £77.8 million into marital funds and held that the “sharing principle” does not apply to non-marital property, such as pre-marital assets. 

Interesting question
An interesting question is what might have been the duration of the litigation, and the cost saving had the Standishes signed a prenuptial agreement before they married? A prenuptial agreement is an agreement that two people sign before they get married and which defines what they will each have, in the form of a financial settlement, on divorce. It must comply with certain formalities – each party must disclose their financial worth to the other, each must take independent legal advice and sign the agreement 28 days ahead of the wedding. If the necessary conditions are achieved, then a court is likely to hold them to their agreement, even if its terms produce an outcome very different to that which a court would impose, unless it would be unfair to do so, in the specific circumstances of their case.

One thing that a prenuptial agreement will do is to define "separate" and "marital" property. It will ordinarily then go on to state that neither party will make a claim, at any stage, against the other's separate property. So that means in the future, each party will keep what they have and what they get, be it from earned or unearned income, gifts, inheritances, lottery wins etc. Standish has now served to reinforce the point that separate or non-marital property stays with its owner, unless the case turns on financial need.

If Mr and Mrs Standish had had a prenuptial agreement, they would have defined their separate property in that agreement (both had been married previously) and no doubt would have made the usual promises and declarations not to claim against the separate property of the other. Such an agreement would have been hard to defeat and would have had the double benefit of protecting and retaining not just the original separate wealth, but also any additions and accumulations in its value.

What we see then from this case is powerful evidence in favour of HNWs entering a prenuptial contract. Prenuptial agreements are fast shedding their "unromantic" tag and becoming an important part of the pre-marriage preparation process with a recognition that they will protect parties down the line. If the agreement comes into its own on relationship breakdown and is put before a judge in the event of a disagreement as to how its operative provisions should work, then even after a long marriage, the identification of separate/non-marital property, at the outset, is likely to avoid the long years of litigation and attendant eye-watering expense, or substantially curtail them at the very least in the interests of the parties and their family.

One in five weddings now start with a prenup according to the Marriage Foundation. For HNW individuals who may have their own wealth to ring-fence in the event of a divorce they should be viewed as essential to provide the predictability of outcome that our courts cannot always guarantee.