The case of Helliwell v Entwistle has highlighted the very important issue of financial disclosure exchanged during the preparation of a pre-nuptial agreement.
In this case, it was found that the wife had failed to disclose the full extent of her assets.
The husband argued that this was material non-disclosure on the wife’s part, and this act of not providing full information, when she stated that she had, should therefore mean that the agreement be invalidated.
The case went to the Court of Appeal, where the judges, Lady Justice King, Lord Justice Moylan and Lord Justice Snowden recorded in their decision:
“…that the Respondent’s deliberate non-disclosure in the circumstances of this case can properly be characterised as fraudulent.” i
It was also noted that “what cannot in any event be disputed is that the Respondent deliberately failed to disclose the majority of her assets notwithstanding that she expressly warranted to the Appellant that she had made full disclosure under the terms of the agreement.” ii
What then does this mean for parties who are considering entering into a pre-nuptial agreement, and what should they be aware of?
In the landmark case of Radmacher v Granatino, the Supreme Court ruled in 2010 that judges could take pre-nuptial agreements into account as long as certain conditions were met.
However, following on from that case, the High Court ruled that the parties should not be bound by a pre-nuptial agreement when its terms created unfairness.
How then can a pre-nuptial agreement be drafted to ensure that it is fair and can therefore be relied upon should the parties separate?
In its 2014 report, the Law Commission set out its proposal to enshrine pre-nuptial agreements in law, which would see them become legally binding, thus providing certainty for separating couples and reducing the number of matrimonial finance cases which result in court intervention.
The report proposed that the following would need to be present if the agreement was to qualify as ‘legally binding’
Provided a qualifying pre-nup provides for the needs of the parties and any children, it will be binding and the court will have no discretion to make an order differing from its terms.
The absence of any of the obligatory criteria would not necessarily render the agreement void, but it would mean it is no longer a qualifying nuptial agreement and therefore it would not be binding. iii
Whilst there is no requirement for full and frank disclosure to be exchanged when a pre-nuptial agreement is drafted, it is recommended.
If the agreement states that full disclosure has been exchanged when, in reality, a party has failed to provide information in respect of all their assets, then the court will likely say that the agreement cannot be relied upon.
This is not just an issue which affects high net worth cases, it is an issue for all parties who enter into a pre-nuptial agreement to consider.
The stark warning for all those who want to put in place an agreement which protects the assets which they are bringing into a marriage is:
IF YOU SAY YOU HAVE BEEN HONEST AND UPFRONT ABOUT THE ASSETS YOU HOLD – MAKE SURE THAT STATEMENT IS TRUE!
If you need guidance on pre-nuptial agreements, please get in touch.
i Jenny Alzena Helliwell v Simon Graham Entwistle [2025] EWCA Civ 1071 (07 August 2025) – at paragraph 12
ii Jenny Alzena Helliwell v Simon Graham Entwistle [2025] EWCA Civ 1071 (07 August 2025) – at paragraph 13
iii Pre-nups should be legally binding, says Law Commission | News | Law Gazette
