Richard Nixon’s lawyer once remarked that there are three types of court submissions.
The first is the one that you prepare before the hearing. It’s well thought out, well-structured and persuasive.
The second one is the one that you actually say in court. It can be waffly, incoherent and muddled.
The third one is the submission that you think of on your way back to the office after the hearing, even if you have actually won. The third type of submission is dazzlingly brilliant and you are sure that had you thought if it in time, it would have guaranteed victory, and the judge would have thought that you were the coolest lawyer he’d ever met.
I recently appeared on the BBC Essex breakfast show where I was interviewed by the presenter, Sonia Watson. This was my first time on the radio. My previous media appearances were limited to appearing in the background of an item on BBC Look East in 1976, silently grinning like a maniac while I stood next to a friend who was doing a vox pop with Jon Sopel at the 2012 Olympics, and then Look East again in 2019 sitting in the audience with other business people being unimpressed by a speech by the then Secretary of State for Trade, Liz Truss. Oh, and an episode of QI where you can see the back of my head.
I was a bit nervous that I might make a mess of my radio debut, but one of the things about being a lawyer is that appearing in court provides you with a skill set that helps with public speaking.
I was told that the interview would only last five minutes and there wasn’t time to go into much detail. Inevitably, afterwards, although it went well, I kept kicking myself for not managing to include a number of points. The 7.30 news bulletin was looming and Sonia wrapped up the interview efficiently after barely four minutes.
So, as a means of exorcising the tiny demons that have niggled away at me since, here’s the bits that I missed out.
Sonia: Just gone 7:25, it’s Sonia here on the BBC Essex breakfast show. Something a little different, but might resonate with you now on BBC Essex, I’m talking about pre-nups. Have you got one? ‘Cos previously it was associated with the celebrities of the world, wasn’t it? The rich and famous would decide to get them, but it seems that more of us are looking into getting them these days, especially if you decide to get married a second, third time, perhaps later in life. Well, Jon Armstrong, a Resolution accredited specialist family law solicitor based in Colchester is with us now. Are you seeing more of us ordinary folk going for them, Jon?
Me: Yes, they’re definitely a lot more common than they used to be. They used to not be worth the paper that they were written on, but nowadays they are being considered much more by couples.
This is the point where perhaps I could have explained that pre-nuptial agreements were really only fully recognised in English law in the Supreme Court decision of Radmacher v Granatino in 2010. Ms Radmacher was a spectacularly wealthy German heiress who entered into a pre-nup with her French fiancé Mr Granatino, who had far more modest finances. When the marriage broke down and they divorced, he argued that he should not be found by the agreement.
Unfortunately for him, the tide of legal opinion was against him. The Supreme Court decided that where the parties have freely entered into a pre-nup with a full appreciation of the implications, the court should uphold it unless it would not be fair to hold them to the agreement. The court can still decide to not uphold a pre-nup however, so they are not completely binding.
Sonia: Why, why do you think they are important, why do you think they are useful?
Me: Well, I think they are useful because they provide certainty in the event of a divorce or a separation. Divorce is an incredibly painful and expensive process…
With hindsight, I should probably have said that divorce CAN be an incredibly painful and expensive process, not that it IS. Not every divorce costs a fortune and many divorces, while probably not pain free, are nevertheless amicable and positive.
Me: …and for people who are marrying later in life or for the second time, they are well worth considering. For couples who are perhaps very young and haven’t got much in the way of assets to protect, and where they’re planning on having children, they’re much less important then and probably not necessary, but for older couples they are well worth considering.
At this point, had there been time, I could dropped in some of the following interesting statistics:
- A 2023 YouGov poll indicated that 42% of people thought that pre-nups were a good idea (although only half that number said that if they were getting married for the first time they would prefer to have a pre-nup.)
- Women with higher incomes are apparently more keen on them than men with higher incomes.
- Almost a fifth of American couples have a pre-nup.
- The BBC recently reported that one in ten couples now have a pre-nup.
- A third of couples under the age of 35 have prep-nups.
I am a little doubtful about the last two. I do far more pre-nups than I used to, but I wouldn’t have thought that they were as common as that.
Sonia: So this is perhaps for argument’s sake, you remarry, you’ve both got your own grown up children, but you want to make sure that your children will inherit your property, sort of scenario like that where it might be quite important to have a pre-nup?
Me: Yes, it’s often a big consideration for couples who are marrying a second time. They’re very keen to protect their assets for the children of their first family.
Sonia: How does that differ then from a will? ‘Cos you might think that I’m getting remarried, I’ve got kids, that’s all tied up with a will.
Me: Well, the important point is to protect the assets. It’s all very well leaving assets to your children in your will, but then if you get divorced before you die [nervous laugh from me here as I realised that it sounded like I was implying that it’s possible to get divorced after you die], then there’s a danger that those assets will have been significantly reduced by the divorce.
Sonia: Yeah, and in terms of getting a pre-nup then, easy to come and see someone and get it done, is it quite a cheap thing to do as well, not too expensive?
Me: Erm, I wouldn’t say it’s cheap [small chuckle from Sonia]. It usually costs a few thousand pounds [small gasp of horror from Sonia] at the very least because quite a lot of work needs to be done and the cost does often come as a bit of surprise to people who are enquiring about getting a pre-nup.
This is the moment where I should have explained that it costs quite a bit because both parties need legal advice on the agreement. It’s not just my fees preparing the pre-nup and advising one party on it, the other party has to go to another solicitor who will consider the draft and advise them on it too.
It should also be borne in mind that the whole point of a pre-nup is to avoid the cost, risk and stress of a financial dispute if the parties divorce or separate. That cost will be vastly more than the cost of a pre-nup. Choosing not having a pre-nup because it’s a bit expensive can therefore be thought of as a false economy.
Me: The important thing really is to do it as soon as possible. Because one of the things than can often happen is we get asked to do pre-nups very late in the day, really very uncomfortably close to the wedding, and a prenup that is signed pretty much at the last minute may not be upheld by a court because there’s a concern that one party may have been placed under pressure to sign it.
Sonia: How close have you had to do them to the wedding, then? Quite close?
Me: I’ve certainly done them very close, up to may be a week or so before the wedding which is NOT the best way to do it and we have to warn the clients in those cases that there’s always a danger that if you end up in court arguing about this, it might perhaps not be upheld if the court feels that one of you was placed under unreasonable pressure to sign it.
What I wish that I had added here would have been to also say that if the date of the weeding is looming, a better option might be to wait until after the wedding and to have a post-nuptial agreement instead, completing it after the pressure of the impending nuptials has lifted.
Sonia: Yeah, that’s really interesting stuff, Jon, thank you for coming on. That’s Jon Armstrong, Resolution accredited specialist family law solicitor based in Colchester on the increase of people taking out prenups. But as he said, and this kind of fits with a lot of life admin, doesn’t it? We do not always think about it as early as we need to. Jon’s top tip there – if you are thinking of getting one and going down that route, and they’re not the cheapest thing to do, make sure you do it in plenty of time. It’s just coming up to 7:30…
And that was it. I’m sure that you will agree that it was four minutes of sold radio gold. I can’t believe that we didn’t make it onto Pick Of The Week.
Four minutes only scratched the surface. There was no time to mention that the government is proposing to change the law to make pre-nuptial agreements more binding by introducing so-called Qualifying Nuptial Agreements (QNAs). These would differ from a pre-nup by using a standard procedure with an obligation to provide full financial disclosure beforehand so that both parties know what they are potentially giving up or gaining.
A failure to provide full financial disclosure in the case of Entwistle v Helliwell recently led to a pre-nup being overturned.. The husband failed at first instance to persuade the judge that he should not be bound by a pre-nup entered into with his much wealthier fiancée, and also had to suffer the humiliation of being told by the judge that he needed to learn how to cook, (a judicial aside which, while a very minor aspect of the case, nevertheless meant that that the press picked up on it). However, he successfully appealed the decision because the wife had failed to disclose her enormous wealth fully before they signed. Prep-nups contain clauses in which the parties confirm that they have provided full disclosure of their finances. This was a fundamental part of the deal and the wife’s failure to abide by that clause meant the Court of Appeal did not uphold it and the husband’s financial remedy application started all over again.
QNAs will also require both parties to have received independent legal device. A failure to obtain legal advice beforehand is usually fatal to a pre-nuptial agreement, but it is worth noting that in Radmacher v Granatino, the husband did not seek legal advice on the agreement before executing it, and yet the agreement was still upheld by the Supreme Court. It took the view that Mr Granatino, who was well-educated and worked in finance, knew exactly what he was giving up.
Finally, QNAs will include a prohibition on agreements signed just before the wedding. I often find that people enquiring about pre-nups leave it far too late. The pre-nup is not considered as early as choosing the venue, arranging a photographer, ordering the dress, buying the ring, picking the cake and sorting out the stag and hen nights. They take time to sort out, even where they are straightforward.
I was expecting that Sonia would probably ask if I thought pre-nups are romantic. My answer would been that, no, pre-nups probably aren’t romantic, but then again, neither is a long and expensive contested divorce financial dispute.
16 August 2026
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