Prenuptial agreements in England and Wales are generally upheld by the courts – provided of course they meet certain conditions. These include:
- That both sides receive independent legal advice
- Both parties make full disclosure of their financial circumstances
- There is no suggestion of duress or coercion
If the necessary conditions are met, parties can expect to rely on the agreement – even after a lengthy marriage. One caveat however: if, when the time comes to enforce the agreement (separation/divorce) it would not be fair to hold the parties to the agreement, the courts may look beyond its terms and reach a different financial remedy.
By their nature, prenups are often signed years or even decades before the question of enforcement becomes a live issue. Can a party to a prenup argue that, because it no longer covers their future financial needs, the agreement is unfair and should – to some extent at least – be disregarded in financial remedy proceedings?
This was the case made by the wife in IC and AD (2026). As we’ll see below she succeeded in securing a larger settlement than what she was entitled to under the 14 year-old prenup. This was largely because the agreement did not meet her financial needs. We also touch on another issue raised: the importance of clear drafting when it comes to prenups – particularly where there are significant or complex assets.
IC and AD – When The Prenup Is Unclear
The couple, in their 40s, started living together in 2010. They married in 2013. They had two children, and during the marriage the wife was largely a child-carer and a homemaker. The husband has a highly successful career in equity finance. In May 2024 the husband applied for divorce.
Before the marriage, the couple signed a prenup. Although the actual signed copy of the agreement was not available to the court, there was no dispute over the written terms of the agreement.
There were however widely differing opinions on how these terms should be interpreted.
The wife believed that the prenup had limited application to the assets available for distribution (some £26 million). She argued that it only prevented her claiming a share in two properties owned by the husband before the marriage. All other assets, she argued, should be subject to the sharing principle.
The husband however believed the prenup had a much wider effect – barring the wife from claiming a share in all assets held in his sole name (the bulk of the disputed wealth).
From the judgment there is little doubt that both sides had received independent advice on the prenup and it was entered into freely. The way it was drafted however left a lot to be desired. It was not, said the judge, ‘a model of clarity’.
The precise meaning of the prenup was the central area of dispute. It was why, despite extensive efforts, the parties had not been able to reach a settlement between themselves. Regrettably almost £1million of family money had been spent arguing over the interpretation of the prenup.
Despite this lack of clarity, the judge found that the terms of the pre-nuptial agreement should be regarded as binding on the parties. This meant that the wife had no claim on the two ring-fenced properties owned by the husband before the marriage. Additionally, save for certain specific items, the wife could not make any sharing claim in relation to any asset held in the sole name of the husband. Instead, she was only entitled to share in assets held in joint names.
Under the terms of the agreement this meant the wife was entitled to £2.8million.
However, that was not the end of the story. The wife claimed that this amount did not meet her future financial needs.
IC and AD – When Prenup Doesn’t Meet Financial Needs
On one level the award to the wife seems inadequate. In short, she received £2.8 million while the husband retained approximately £25 million. However, as the judge emphasised, such an uneven distribution of assets is a fairly normal feature of these pre-nuptial agreement cases. After all, this is very often the primary reason for the financially stronger spouse to want a prenup in the first place.
Nevertheless, the courts do retain a discretion to look at the overall circumstances of the case and go beyond a prenup. If, in the interests of fairness it is appropriate to depart from the strict terms of the agreement, the courts will do so.
Here the court found it reasonable to assess the wife’s future needs to see if they were met by the prenup. In doing so the court considered the usual s25 factors, such as the standard of living that the parties jointly enjoyed during the marriage. It found that, given the amount of resources available to meet the wife’s needs it was appropriate to award her maintenance of £13,000 per month. This was then capitalised into an overall, one off payment by the husband to the wife of £1million.
Comment
This case is a useful reminder that when the requirements for a prenup are met, they will generally be respected by the courts. The overarching principle of fairness remains, however. Any entitlement under a prenup can be extended to meet the needs of the parties – particularly where, as in the case discussed, there are substantial financial resources.
The case also provides a cautionary lesson about the need for care when drafting prenups. A substantial amount of time and money was spent here arguing over the way the agreement should be interpreted.
Finally it’s worth pointing out that the government’s consultation in 2026 on financial remedies on divorce and separation – A Fairer End to Relationships – is looking at how to more formally recognise ‘qualifying nuptial agreements.