Recent court judgements on nuptial agreements have placed an emphasis on the importance of transparency and independent legal advice when it comes to the court’s ability to enforce them; with the latest Court of Appeal decision Jenny Alzena Helliwell v Simon Graham Entwistle [2025] EWCA Civ 1055 a further example.
The case concerns an appeal by Simon Entwistle (“the husband”) against a financial remedy order made by Mr Justice Francis in the Family Court. The dispute arose from the breakdown of a short, childless marriage between Mr Entwistle and Jenny Helliwell (“the wife”), who comes from a family of substantial wealth.
The parties entered into a ‘drop hands’ prenuptial agreement on the day of their wedding in July 2019. The agreement stipulated that each party would retain their own assets and make no financial claims against the other upon divorce. However, in proceedings Mr Entwistle claimed his wife had failed to disclose approximately 73% of her wealth—valued at over £47 million—in the financial disclosure appendix of the agreement.
At first instance, the Family Court judge upheld the prenuptial agreement but awarded the husband a lump sum of £400,000 to meet his basic needs. The judge found the wife to be honest and reliable, and the husband less so, concluding that the husband was aware of the wife’s wealth and had entered into the agreement voluntarily.
The husband appealed on several grounds, the most significant being:
- The wife’s fraudulent non-disclosure of her assets vitiated the agreement.
- The agreement was signed on the day of the wedding, under pressure.
- The judge failed to properly assess the husband’s needs under section 25 of the Matrimonial Causes Act 1973 (MCA 1973)
Allowing the appeal, the Court of Appeal found the wife had deliberately and fraudulently failed to disclose the majority of her assets, including business interests and a property interest in her mother’s home.
The Court of Appeal judges felt the initial judgement mischaracterized the non-disclosure as merely an underestimation rather than a deliberate concealment.
They also felt the family court had failed to properly apply Radmacher v Granatino [2010] UKSC 42, which requires courts to consider whether any vitiating factors (e.g., fraud, duress, misrepresentation) are present. And the judge’s assessment of the husband’s needs was flawed because it was influenced by the (now invalid) agreement and did not properly consider the statutory factors under section 25 MCA 1973.
The outcome was the prenuptial agreement was set aside due to fraudulent non-disclosure and the case was remitted to the High Court for a fresh assessment of the husband’s financial needs, without reference to the invalidated agreement.
But, said Edward Floyd, a Partner in the Family team at Farrer & Co, although this pre-nuptial agreement has been thrown out, that is not to say the law has changed.
“…the Court of Appeal made it clear the law on pre-nups hasn’t changed. Pre-nups and post-nups remain the best form of protection for high net worth and high earning couples.”
He adds this is the ‘latest in a string of judgments to emphasise the importance of “autonomy” of marrying couples’ and spouses should have all the information required to make a proper decision and access to a lawyer if they want.
Peter Burgess, partner at Burgess Mee, said it was a ‘rare example of a pre-nup being successfully challenged, the judgment reinforces the fact that if duress, fraud or misrepresentation is present, then a pre-nup will not be upheld.’
“It also underlines the importance of specialist advice being taken in every case to ensure that the criteria laid out fifteen years ago in Radmacher v Granatino are complied with to the letter.
“Those entering into pre-nups must clearly agree what disclosure they each require in order to freely decide if they wish to sign up to the agreement. Importantly, they must both then honour this agreement to disclose as failure to do so is likely to vitiate the agreement and render the pre-nup invalid. So, to adjust the saying, you don’t need a “full English” disclosure exercise but you can’t promise a full English and then serve it without the eggs.”
Sarah Jane Boon, Partner at Charles Russell Speechlys concludes
“This is a paradigm example of what can go wrong when due process is not followed at the time a pre-nuptial agreement is entered into. By not giving full and frank disclosure Ms Helliwell has, in effect, negated the pre-nuptial agreement that she had wanted to have in place to protect her wealth, and Mr Entwistle’s claim will be assessed as if the pre-nuptial agreement never existed. That will mean his needs are assessed, taking into account the standard of living the parties enjoyed during their marriage. This may well end up being a more generous award than could have been provided for had the pre-nuptial agreement been done properly, including stipulated provision for meeting Mr Entwistle’s needs.”
