The ramifications of the landmark case of Radmacher v Granatino [2010] UKSC 42 in 2010, are still being felt today, with pre- and post-nuptial agreements increasingly accepted under English law and increasingly common amongst wealthy spouses. Despite the “magnetic importance” of nuptial agreements, uncertainty as to whether or not a nuptial agreement will ultimately be upheld still lingers. For a nuptial agreement to be taken into consideration, it must have been “freely entered into” by both parties with a “full appreciation of 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 surrounding the interpretation of nuanced clauses, obviously undermines the very purpose of a nuptial agreement. In some circumstances, the presence of an agreement between estranged spouses can give rise to more complex and expensive litigation than if the nuptial agreement had never been entered into at all.

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 will likely have significant consequences for high-net-worth families. It is a shift that is especially relevant as an increasing proportion of people within those families 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, 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 her into entering into a nuptial agreement which was not ultimately upheld. Through its ruling, the court sent out a clear message that pressurising and controlling behaviour will not be tolerated. Going forward the court is likely to be more willing to scrutinise the parties’ behaviour in entering into these agreements more closely. 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, (usually the financially weaker party), from being able to exercise any real self-determination or free will for fear of repercussions. This approach is in line with the relatively recent shift in the context of Children Act matters and the court’s approach to a party’s controlling and coercive behaviour towards the other party and/or their children. The judgment in PN v SA demonstrated that for pre-and post-nuptial agreements to stand up to scrutiny by the courts, the court must deem them valid, fair and binding.

AH v BH [2024] is an example of a case in which the court may depart from the terms of a nuptial agreement to meet needs – in this instance of the wife and the children. In that case the court found that the nuptial agreement did not provide the wife with sufficient provision 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 (which usually arises between unmarried parents), as if they had never been married and therefore depriving her of the legal protections normally afforded by marriage. Notwithstanding this the judge noted that absent the pre-nuptial agreement the wife would have been entitled to a far larger 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 additional guidance as to the treatment of “non-matrimonial property” and “matrimonial property” on divorce, often an important feature of and motivation for nuptial agreements. In that case the husband transferred, during the marriage, around £80 million of assets 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 they fell to be shared with the wife, albeit unequally. However, 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.

Consequently, Mrs Standish’s overall award was reduced from £45m to £25m. 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 of the importance of considering a pre-nuptial agreement, the decision in Standish should provide some comfort for those already married who did not enter into one.

In the perhaps amusingly named BI v EN [2024] EWFC 200 (Fam), the main point of contention was not a nuptial agreement, but a French marriage contract signed seven days before the parties’ wedding, which adopted the ‘separation de biens’ marital regime, in which each spouse retains ownership of their own assets and debts. Under dispute was whether this ‘contrat de mariage’ between the spouses, both French, should be upheld, with the wife claiming that she had not understood its implications. The contract was scrutinised for its jurisdictional enforceability in an English court and relevance to the financial dispute. As with a pre-nuptial agreement, the court closely examined whether parties had entered into it with full knowledge and agreement on its terms.

Ultimately, it was decided that the contract had validity, but should not be determinative, with its terms being balanced with the principles of fairness under English law. Although the wife argued that her husband’s estimated wealth of between £87 and £115 million was matrimonial and therefore should be shared, the court instead  ordered a needs-based settlement in which she received around £23 million which took into account the 21 year marriage  and her standard of living during the marriage, as well as the family home, to ensure the continued stability of the parties’ children. This was a clear example of the court’s function being to weigh up the strength of the terms of a marriage contract against the equally important elements of fairness and family welfare.

While the judgments of the last 12 months have provided more transparency, courts continue to vary in how much weight to give to pre- and post-nuptial agreements, depending on factors like fairness, timing, legal advice and transparency. This will undoubtedly remain so for the foreseeable future, although the plethora of disputed divorces to emerge in which an agreement was a factor has provided judges with a greater depth of case law on which to formulate their conclusions and given that such agreements are increasingly prevalent in high net worth marriages, this will no doubt continue to be an important and evolving area of modern family law.

Kate and Sarah’s article was originally published in Family Law Week, here. A similar article was also published in Today’s Family Lawyer, here.