This article was first published in the ThoughtLeaders4 HNW Divorce Magazine.
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 10th 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…