Lucy Theobald at The Family Law Company examines a recent high-profile divorce case which has drawn national attention, not only for its eye-watering settlement of over £230 million ($307 million), but for the legal and ethical principles it highlighted.

It what appears to be the third-largest divorce award in
English legal history, Lucy Theobald (pictured), director at
The
Family Law Company, examines the case. The editors are
pleased to share these insights; the usual editorial disclaimers
apply to views of guest writers. To comment, email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

The couple in question had been married for 20 years before
introducing a post-nuptial agreement in 2023. The terms, heavily
weighted in the husband’s favour, were expected by him to be
upheld. But the court took a different view. The judge found the
agreement to be neither complete nor conclusive, ultimately
ruling that it had been secured under pressure and through
coercive behaviour.

The judge underlined the husband’s attempt to undermine his
wife’s trust in her legal representation by using scare tactics;
a strategy which backfired. Such behaviour clearly compromised
the wife”s ability to exercise her free will, severely weakening
any chance of the terms of the agreement to be taken into
consideration by the court.

This case, and its outcome, serves as a blunt reminder that no
matter the scale of wealth involved, fairness must underpin any
financial settlement. When one party attempts to impose their
will, especially through intimidation, manipulation or by
obstructing access to sound legal counsel, the integrity of any
agreement is at risk.

It’s not uncommon in high net worth relationships for one spouse,
typically the more financially successful party, to exert undue
influence. Scornful suggestions that lawyers can’t be trusted or
“this will only cost us more in fees,” are likely to chip away at
the other’s confidence. Subtle threats may even be made, perhaps
in the form of inferences that pursuing legal advice or rejecting
a proposed agreement will come at a personal or financial cost.

Ascertaining conclusively that undue pressure has been applied
may appear difficult, particularly if one party is unfamiliar
with legal terminology, or English is not their first language.
However, an experienced legal team will painstakingly strive to
uncover if coercion has been applied.

Courts take such dynamics seriously. If coercion is found to be a
factor and a spouse’s consent is shown to have been compromised,
then even a formally signed agreement may carry little legal
weight. Judges are not persuaded by wealth or status. They are
guided by fairness.

As unlikely as it sounds, it is entirely plausible for a spouse
to accept an agreement that isn’t in their favour in full
understanding of the implications. However, should such a consent
order be filed, a judge is extremely likely to request firm
evidence that the spouse has genuinely agreed to the terms.

It is important to note that English law does not currently
recognise post-nuptial agreements as legally binding. However, if
the legal conditions are met and an agreement reached without
pressure then courts are more likely to take it into
consideration. In the aforementioned case, the judge remarked
that had both parties been “properly advised by independent
lawyers,” the court would have been “slow to interfere.”

With that in mind, what does best practice look like?

A fair post-nuptial agreement should:

— Be drafted by a lawyer experienced in family and matrimonial
law;

— Include full and frank disclosure of assets, liabilities,
income, and expenditure from both parties;

— Be signed voluntarily by both parties, without coercion or
undue influence;

— Be written, not oral; and

— Be built on terms that are fair and reasonable.

Ideally, each party should instruct their own solicitor.
Collaborative law and mediation can also support constructive
communication, ensuring that any agreement is not only legally
robust, but also ethically sound.

It is not uncommon for a spouse to suggest to their former
partner that lawyers are only interested in their fees; however,
in this case, the husband’s undermining of the wife’s
relationship with her lawyer ultimately contributed to costs in
the region of £5.5 million, a figure that could have been
significantly reduced had the process been approached openly and
fairly from the outset.

Above all, this judgment is a powerful reminder that wealth does
not bestow immunity from the law. The courts will always
prioritise fairness. Those entering into any form of marital
agreement would do well to remember that playing fair isn’t just
morally right, it’s legally prudent too and can prevent years of
acrimony, anger, upset – and potentially unwanted publicity.