Radmacher v Granatino: how are prenups interpreted by the courts 15 years on?

It has been 15 years since the groundbreaking case of Radmacher v Granatino which saw a significant change in how the courts interpreted prenuptial agreements (prenups). Prior to this, prenups were usually not strictly enforceable and the courts would only look at them on divorce as a factor in the case.

In this case, the Supreme Court held: “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

Has anything changed since then?

There have been a number of authorities from the High Court on the interpretation of prenups in terms of how the agreement was entered into and put together – for example, was there unfair pressure put on one of the parties or was legal advice given prior to entering into the agreement and on the financial effect of the agreement, that is, does it leave one party in “real need” and what does “real need” mean?

In March, the case of Entwistle v Helliwell was heard in the Court of Appeal. The judgment is expected later on in the year, but the hope is that it will bring clarity to the meaning of “real need” and the provision of financial disclosure in prenups.

In that case, Mr Entwistle sought to appeal a final order made by Mr Justice Francis on 15 March 2024, which required his former wife, Ms Helliwell, to pay him a lump sum of approximately £400,000 whilst she was worth around £61 million (on her case) and closer to £74 million approximately (on his case).

The parties were married for three years and did not have any children. They had signed a prenuptial agreement on the day of the wedding, which Mr Justice Francis gave effect to when deciding that Mr Entwistle should only receive a limited lump sum payment based on his needs.

Notwithstanding the fact that the prenuptial agreement had been signed on the day of the wedding (when The Law Commission recommends that agreements are signed at least 28 days in advance of any wedding), it was clearly drafted on the basis that each party was to keep their own separate assets, that they would not make any financial claims against the other, and that any property occupied as a family home would be divided between them in the shares relevant to their contribution. Mr Justice Francis found that the husband “knew exactly what he was doing” even though he had received very limited legal advice and financial help from his wife.

Prenups are now much more common 15 years on from the case of Radmacher v Granatino. As a result, it is now clear that agreements will be upheld if certain legal safeguards are met, including financial disclosure, lack of duress, and fairness. Mr Entwistle’s appeal includes arguments about the lack of/inaccuracy of the financial disclosure from his wife and the unfairness in the size of his award relative to his wife’s wealth, the standard of living that they enjoyed during the marriage, the period of cohabitation before the marriage, and his “real need”.

It is to be hoped that clarity will be forthcoming, particularly on the definition of “real need”. It will be interesting as to whether there are any comments on gender too, as it was said by Mr Entwistle that the court would not have reached the same conclusion, in his view, if it were a wife in his position and a husband in the position of Ms Helliwell. This is also a point that was in debate after the case of Radmacher v Granatino.

If you have any questions or concerns about prenups or any other family query (including mediation), please contact family lawyer Emma Harte.