The recent appeal judgment in Helliwell v Entwistle[2025] EWCA Civ 1055 is a cautionary tale for clients who are entering prenuptial agreements and highlights the importance of ensuring that financial disclosure, if offered, is complete and accurate if their prenuptial agreement is to 'stick'.
The Case
The Husband appealed the High Court decision to uphold the parties' prenuptial agreement. The agreement contained mutual assurances that the disclosure exchanged by both parties was given 'fully and frankly' and was 'substantially complete in all material respects'. The Wife's actual disclosure fell significantly short of this: the Court in the first instance established she failed to disclose almost £48million worth of assets (equivalent to 73% of her wealth at the time of the prenuptial agreement). The Wife claimed that she did not consider the undisclosed assets (gifted to her by her father) to be truly hers, that she was concerned about the tax implications of acknowledging ownership. She also suggested that the Husband was aware of some of the undisclosed assets in any event. The Appeal Court rejected the Wife's attempts to justify her actions and found her non-disclosure to be deliberate and fraudulent. The case was referred back to the High Court for an assessment of the Husband's needs as though the agreement never existed.
The Law
Lady Justice King considered the two-stage test established under the seminal case of Radmacher v Granatino [2010] UKSC 42 to consider whether or not to give effect to a nuptial agreement:
- The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. [...] unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement,
- [The second stage] 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.
The facts of this case led the Appeal judges to conclude that the prenuptial agreement failed at the first hurdle because the Wife's intentional omission of certain assets was fraudulent.
All or nothing...
The case highlights that if a party to an agreement provides assurances that their disclosure is 'full' and 'complete', then this must be true. If the disclosure is inaccurate (whether intentionally or by mistake) that can be enough to undermine the agreement, and in extreme instances, such as this, where one person was found to have deliberately misrepresented their finances or behaved fraudulently, the deficient disclosure can invalidate the agreement completely.
That being said, Lady Justice King's judgment contains a reminder that parties to a nuptial agreement are nevertheless free to agree to opt for no disclosure at all if they are both comfortable doing so (so long as they are capable of having a full appreciation of the agreement and its implications) – and vitally, such agreement would still need to pass the second stage of the test and be fair to both of them.
So what does this mean at a practical level? Clients and their lawyers need carefully to review what representations are being given about the disclosure proffered and ensure these are caveated appropriately – for example, if a client wants to give broad estimates of value or to provide indicative round figures, then the agreement should clearly state so. That's not to say that couples should not be offered the genuine opportunity to ask questions about the other's disclosure - if such questions are asked, they should be fully answered.
Of course, navigating the financial disclosure process ahead of a wedding can be awkward for some couples who may never have had frank conversations about their respective wealth, but they are vital if they are to them truly appreciate and understand the financial implications and fairness of the agreement they are signing, before their wedding day.
The bottom line
The principles established 15 years ago under Radmacher still hold true, while we await formal legislation governing nuptial agreements in England & Wales. Some clients are comfortable with them, others less so, but at the end of the day, nuptial agreements 'are about the autonomy of parties to determine for themselves what should be the fair outcome in the event that their marriage fails. Some would say that this always requires an element of crystal ball gazing. Whether or not this is so, autonomy requires that each person enters into the prenup (and therefore the marriage) 'freely' and with a clear understanding of what they are signing up to'.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
