Tag: emily-venn

On 19 March 2025, Mr Entwistle, Ms Helliwell and their legal teams attended the Court of Appeal to make their arguments in respect of Mr Entwistle’s appeal of Francis J’s decision to hold him to the terms of a prenuptial agreement the parties had signed on the day of their wedding – save for a modest additional payment of £400,000 to meet his needs, covering a three-period of spousal maintenance, a rental budget for two years, and a car.

One of the grounds of appeal was that the size of the award was unfair relative to Ms Helliwell’s wealth, and that Francis J had not properly assessed his needs, taking into account the parties’ standard of living during the marriage.

The outcome of the appeal is awaited, so it remains to be seen whether the Court of Appeal will reconsider the assessment of Mr Entwistle’s needs, following a short marriage in which the parties bore no children, in more generous terms.

So, how does the court determine a financially weaker party’s award where a PNA exists?

In Radmacher v Granatino, it was stated that “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.” ‘Needs’ was identified as one factor which would most readily render it unfair to hold the parties to a PNA, as they were unlikely to have intended that it should lead to a spouse being left in “a predicament of real need, while the other enjoys a sufficiency or more”.

But, how does the court ensure that a spouse is not left in a “predicament of real need”?

Historically, this was interpreted conservatively, as “the minimum amount required to keep a spouse from destitution”, or in a “book-ended” range where the left book-end constituted a “spartan lifestyle catering for not much more than essentials”, just to the right of that left book-end. However, recently, how needs are assessed has depended on the circumstances of the case:

HD v WB (Peel J): After a long relationship with three children, the PNA was held not to meet H’s needs (awarding him only £112,000 after a six-year marriage, despite the length of their relationship). He was awarded a housing fund of £2.5m to be held on trust for W (such mechanism having been contemplated by the PNA, but only amounting to £500,000 upon the 10^th anniversary of the marriage), a capitalised sum of £1.2m to meet his income needs for five years, and further sums totalling £700,000. Peel J commented that without the PNA, H would have received significantly more.

Backstrom v Wennberg (L. Samuels KC): After a six-year marriage, H received a housing budget of £6.5m in light of the PNA providing for his and the parties’ son’s reasonable housing needs to be met during the remaining 15 years of their son’s minority, such housing to revert to W at that stage. Despite scant evidence of his earning capacity and income needs, he was awarded a capitalised sum of £350,000 to meet his income needs for six years.

MN v AN (Moor J): After a long marriage, the PNA, the terms of which provided W with a Duxbury fund of £7m and a housing fund of £4.75m, was held to meet W’s needs and therefore upheld in full. Moor J commented in relation to each figure that it may have been that, absent the PNA, a Judge would have awarded a higher sum.

BI v EN (Cusworth J): The parties entered into a French marriage contract, electing a séparation de biens regime, which was upheld. This excluded sharing of the significant wealth that had been built up during the marriage, but did not prevent the English court from making a needs-based award to ensure W’s needs were met. The judge made a generous award in light of the length of the marriage and high standard of living enjoyed, her contributions to the family and the significant resources available and generated during the marriage. A similar approach was taken by Moor J in CMX v EJX. It is notable that in these cases, the French marriage contracts left the question of maintenance and needs generally to be dealt with separately (as would have been the case under French law), hence the generous awards made.

Two themes run through these cases: firstly, there is clearly no one-size-fits-all approach; and secondly, the financially weaker party’s sharing entitlement (however great it may have been) was set aside in favour of a needs-based award being made, due to the existence (and operative terms) of the relevant PNA. And, however generously those needs were provided for, they ultimately received less than they might otherwise have done had a valid PNA not been in place.

However, French marriage contracts aside, none of the above cases really and truly substantively departed from the terms of the PNA in question – which brings us to AH v BH. Peel J emphasised the latitude and flexibility available to the court to determine the receiving party’s needs and, entirely contrary to the terms of the PNA, awarded W an outright housing fund and a capitalised income fund for ten years, totalling 8% of the assets. No stepdown was awarded since Peel J was not confident that W would be self-sufficient after ten years. Key factors influencing his decision were W being primary carer of the parties’ two minor children, the fact that the PNA, which contained a clause stating that it would be reviewed upon the birth of the parties’ first child (indicating their belief that it would not be a fair document in such circumstances), and the impact on W’s financial stability and dependency of having married and had children. Whilst Peel J noted that W might have received more absent the PNA, it is arguable that, the PNA being in place as it was, had he taken a more robust approach in relation to W’s longer-term needs, she might indeed have received less.

AH v BH reflects a renewed emphasis on judicial discretion in the context of determining needs where there exists a signed agreement intending to limit the financial claims a party might otherwise have had upon divorce. It also, together with the more recent case law, contributes to the uncertainty of what orders might be made where a PNA is found to cater insufficiently for needs, leaving legal practitioners in somewhat of a predicament in advising clients on likely outcomes.

Therefore, what Mr Entwistle’s fate will be remains anyone’s guess…

22 to 26 January 2024 marks Family Mediation Week 2024, an annual event run by the Family Mediation Council (“FMC”) devoted to raising awareness of mediation and the ways in which it can help and benefit separating couples and their families.

Throughout the week, the FMC publishes resources and information about mediation and hosts events for the public, lawyers, other professionals working with separating families, and mediators.

Mediation is one of a number of different processes (referred to collectively as ‘Non-Court Dispute Resolution’ (“NCDR”)) which can assist separating couples with resolving financial or children-related issues arising from the breakdown of a relationship, if they wish to avoid the stress and expense of court proceedings. Mediation typically involves a trained professional – the mediator – assisting the separating couple in negotiating an agreement by exploring solutions in a structured, consensual manner. The process is ‘without prejudice’, meaning that if the separating couple cannot reach an agreement and end up embarking on court proceedings afterwards, their discussions in mediation cannot be referred to in court. Mediators are independent and impartial and do not provide legal advice. Separating couples can therefore choose to have their respective solicitors ready to advise as and when needed (or even attend the mediation with them).

The benefits of mediation

If mediation is appropriate, it can have significant benefits:

Reduced costs;
Reduced conflict, which will help maintain a positive co-parenting relationship post-separation;
A forum in which the separating couple can listen to one another and reach a tailor-made agreement which suits their family’s needs and has the flexibility to go beyond what a court would order; and
Retaining control over the outcome, instead of giving up control to a judge.

It is important to note that mediation will be more constructive where there is trust and respect between the separating couple and a mutual willingness to engage in the process and make compromises where it is reasonable to do so. Where finances are being discussed, the first important step is for both to have a clear understanding of the financial landscape, often by agreeing a schedule of assets, liabilities and income or exchanging financial disclosure on a voluntary basis in advance of mediation. A further cost-saving benefit of mediation is that, unlike in court proceedings where both parties are required to provide ‘full and frank’ financial disclosure, in mediation, the parties are able to agree on the extent of the disclosure to be provided and the format for producing this.

Privacy and confidentiality

One particular consideration for separating couples to have in mind, when exploring NCDR such as mediation as opposed to court proceedings, is privacy. While reporters have previously been able to attend family cases, they have been subject to rigorous restrictions on what they can report. However, there is a new push by judges to increase transparency in the family courts – and to extend the scope of what can be publicly reported. With the extension of the Transparency Implementation Group Reporting Pilot (“the transparency pilot”) at the end of January 2024, it is anticipated that there will be increased reporting on family cases. The transparency pilot will take place in 16 courts and introduces the presumption that accredited media and legal bloggers are allowed to report on what they see and hear during family court cases, albeit this is subject to strict rules about anonymity and confidentiality. However, parties often remained concerned that it may be possible for close friends/family members to identify them, based on what is reported.

This is likely to be a particularly significant concern for high-profile individuals, but it will also worry anyone who wants their family dispute to remain completely private. In contrast to the push for transparency in family court cases, NCDR is completely private. With NCDR, it is possible that the press will never find out any details about the family dispute.

There are also the additional costs to think about. The presumption that the press can report on what they see and hear in court (and that they may receive detailed documents with substantial information about the separating couple, their family and the proceedings) is likely to lead to additional work for legal teams in cases where the parties are concerned about reporting. The court will grant what is called a Transparency Order which ordinarily will permit reporting subject to restrictions to preserve anonymity and confidentiality. If a party or both parties do not agree to the court making the standard Transparency Order, they may have to make additional applications to try to further restrict reporting. Extra legal fees will be incurred where steps need to be taken to avoid or minimise what can be reported following a family court hearing.

A push for more separating couples to mediate

Typically, couples are only able to embark on mediation if both parties agree to do so. However, whilst previously often overlooked by many, there is now a marked increase in couples opting for methods of NCDR such as mediation.

The Family Procedure (Amendments No. 2) Rules 2023/1324 will come into force in April 2024. This will contain significant updates in relation to NCDR, including a new requirement for parties in financial and children proceedings to complete a form setting out their views on using NCDR to resolve issues.

The court will also be able to adjourn (delay) the proceedings to enable NCDR to take place regardless of whether the parties have agreed to such an adjournment. This was recommended by Mr Justice Mostyn in the case of Mann v Mann [2014] 2 FLR 928: previously, the parties had to agree to such an adjournment. At present, the court can only adjourn the proceedings to enable the parties to consider using NCDR (as opposed to allowing NCDR to take place) without their agreement, as was ordered in WL v HL [2021] EWFC B10.

Recently, the Court of Appeal held in Churchill v Merthyr Tydfil CBC [2023] EWCA 1416 that in civil proceedings, the courts can order parties to engage in NCDR. In family proceedings, the courts are currently only able to encourage separating couples to do so, so family lawyers will have to wait to see whether Churchill will lead to the family courts being permitted to compel separating couples to engage in NCDR.