This year marks the 15th anniversary of a landmark court case affecting pre- and post-nuptial agreements in England and Wales (different laws apply in Scotland). The author of this article explores what has happened since, and the salient features of the law as it stands.

The following article comes from Edward Floyd (pictured), family partner at law firm Farrer & Co. Floyd shows how Family Court judges are increasingly willing to make robust court orders against parties who have litigated unreasonably – “losers” in cases risk high-stakes judgments where they’re ordered to pay the “winner’s” fees. Floyds says that pre- and post-nuptial agreements remain the best form of protection for HNW couples – if individuals try and challenge them, they must consider that they may end up being worse off than if they had brought no claim at all.

The editors are pleased to share these insights; the usual editorial disclaimers apply. These articles are about starting conversations, so please get involved. Email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

2025 marks 15 years from Radmacher, the landmark Supreme Court Case which changed the law on pre- and post-nuptial agreements in England and Wales. Although “pre-nups” and “post-nups” are not strictly binding, they are now generally given effect on divorce, providing it would not be unfair, and certain procedural requirements are met. The Court of Appeal is currently deliberating another milestone case about what this means in practice.

Jenny Helliwell and Simon Entwistle signed a “drop hands” pre-nup on the day of their wedding which provided that neither would make any financial claims against the other in the event of divorce. The couple celebrated their union with a £500,000 ($664,308) wedding in Paris following which they lived in a £4.5 million villa in Dubai, gifted to Ms Helliwell by her father. When their marriage ended just three years later, Mr Entwistle sought to challenge the terms of their pre-nup.

Ms Helliwell’s fortune was estimated to be worth £60 million to £70 million. Mr Entwistle initially sought £10 million from his wife, but by the time of the trial he had reduced his claim to £2.4 million. Ms Helliwell had offered to pay him up to £800,000 to avoid a court battle but, after he rejected these offers, she argued that he should receive nothing in accordance with their pre-nup. 

The judge was highly critical of Mr Entwistle’s case, finding that the pre-nup was written in ‘straightforward plain English’ and Mr Entwistle “knew exactly what he was doing” when he signed it. After a short marriage with no children, the judge upheld the pre-nup almost entirely save to provide Mr Entwistle with a limited capital sum to meet his needs.  

The judge awarded Mr Entwistle £400,000, however, from that sum he was ordered to pay £75,000 towards the wife’s legal costs. He also had to meet his own legal costs, leaving him worse off than before he brought his claim.  

The outcome was a far cry from the level of financial provision Mr Entwistle had envisaged. His claim included a £26,000 per annum “meal allowance” and he told the judge in evidence that he could not even cook an omelette. The judge derided this, telling the husband: “My answer to that is, `Learn.’ It is not difficult. You do not have to be a master chef to learn how to eat reasonably well.”

The case contained a warning about making unreasonable offers, saying the consequences of trying to start high to try to make the midpoint higher could have costs consequences, which were described as potentially “devastating.”

Mr Entwistle has now appealed to the Court of Appeal, arguing that the judge would not have made the same award if the genders were reversed. He is also arguing that Ms Helliwell’s financial disclosure was lacking and inaccurate and the size of his award was unfair given the extent of her wealth and the standard of living the couple enjoyed during the marriage.

Pre- and post-nups have grown exponentially in popularity over the last 15 years and couples who have one must think carefully before trying to challenge its terms. This is particularly so after a short marriage with no children, where nothing has materially changed since the couples entered the agreement.

It is clear that Family Court judges are increasingly willing to make robust cost orders against parties who are found to have litigated unreasonably. The stakes on costs are even higher in the Court of Appeal – under the stricter rules on appeal the “loser” is more likely to be ordered to pay the “winner’s” legal fees. 

Whilst we await the Court of Appeal’s judgment in Helliwell v Entwistle, pre-nups and post-nups remain the best protection against a court battle on divorce. Couples considering entering such an agreement should bear in mind the following tips:

1. Don’t delay – start conversations as soon as possible. Ideally a pre-nup should be signed at least 28 days before the wedding. If that is not possible, sometimes an eleventh hour pre-nup can be ratified with a subsequent post-nup.

2. Do make financial disclosure – both parties need to fully understand the context in which they are signing the agreement. It is not uncommon for couples getting married to be unaware of estate planning measures or trust structures put in place by their families – the disclosure process needs to be managed carefully in order to avoid undermining the pre-nup or post-nup.

3. Do provide for needs – a pre-nup or post-nup could be undermined if it does not make appropriate provision for the weaker party’s financial needs. “Needs” can mean very different things in different cases. Both parties will need their own independent lawyer who can advise on how to provide for needs in individual cases.

4. Do consider international aspects – couples where either or both parties have a connection to England and Wales must take advice in this jurisdiction, even if they are currently living abroad. Those with foreign pre-nups may be surprised to learn that they may need an English post-nup if they later relocate here.  

5. Do consider arbitration – pre- and post-nups commonly include clauses that the parties will arbitrate any dispute that arises on divorce (or use other forms of non-court dispute resolution, such as mediation). Such clauses can help manage legal costs and avoid protracted litigation in the public eye. Such clauses are especially popular amongst high profile couples.