Court of Appeal deems prenuptial agreement signed on the morning of the wedding invalid

1. The couple met in 2016, began living together in 2017, and married in July 2019 in the Seychelles.
2. The prenuptial agreement was signed on their wedding day. 
3. The wife, Ms Helliwell in this case was from a wealthy family and was worth c.£60 – £70million in her own right. The husband, Mr Entwistle was not made aware of the extent of her wealth before signing the prenuptial agreement. Mr Entwistle was of more modest means although he did have a professional career prior to their marriage. 
4. The prenuptial agreement provided for a “dropped hands” arrangement. This means they would each exit the marriage with the assets they brought into the marriage, and share any joint assets acquired during the marriage. This is a very common approach for the terms of a prenuptial agreement. 
5. Their marriage broke down in 2022 and Mr Entwistle started financial proceedings as he argued that the terms of the prenuptial agreement did not meet his needs. He claims his needs were £10million. 
6. The application was heard by Mr Justice Francis in the High Court who upheld the prenuptial agreement and awarded Mr Entwistle a lump sum of £400,000 to satisfy his short-term needs. The judge also ordered that the husband was to pay the wife’s costs of £75,000 due to his failure to accept her offers to settle his claims, thus reducing Mr Entwistle’s award to £325,000. 

Mr Entwistle appealed this decision for the following reasons:

• Ms Helliwell had failed to give full and frank disclosure of all her assets in the prenuptial agreement (she had only disclosed c.£18million worth of assets when in fact he said she was worth in excess of £60million at that time)
•  the judge had not given proper consideration to Mr Entwistle’s ability to seek independent and full legal advice once Ms Helliwell had disclosed her assets neither had he considered Mr Entwistle’s argument that Ms Helliwell had pressured him not to do so
• Mr Entwistle’s needs had not been assessed appropriately having regard to all the relevant factors provided for by Section 25 of the Matrimonial Causes Act 1973 (Section 25 factors) 
• Mr Entwistle believed that the decision in the first instance was influenced by his gender when assessing needs which resulted in Mr Entwistle’s needs being assessed substantially less than the provision which would have been made to a wife in similar circumstances

The Court of Appeal allowed the appeal, determining that the prenuptial agreement could not stand due to Ms Helliwell’s deliberate lack of full disclosure. 

The Court of Appeal found that Ms Helliwell had "deliberately" and "fraudulently" withheld from disclosing 73% of her overall assets when entering into the prenuptial agreement. This equated to approximately £47.8million of omitted assets, made up of business assets and a property Ms Helliwell owned jointly with her mother. 

In the first instance, Mr Justice Francis held that Ms Helliwell was unclear as to whether the excluded business assets were in her sole name or her father’s name, and she claimed that she did not want to clarify the position as she was too scared to ask her father. 

However, this position was not reconciled in the Court of Appeal and it became clear in Ms Helliwell’s evidence that she knew the business assets were in her name, and not only had she spoken to her father about it, but she had made a conscious decision not to disclose them in the prenuptial agreement as she and her father were "concerned about tax". It was held that the material non-disclosure of her assets amounted to "fraudulent non-disclosure" and vitiated the prenuptial agreement. 

Issues were also raised surrounding the lack of legal advice Mr Entwistle received prior to signing the prenuptial agreement. The only legal advice that had been given to him was at a time when no disclosure had been made by Ms Helliwell. It further transpired that Ms Helliwell had sent Mr Entwistle a copy and paste email intended to be copied to her solicitors, which would have put him in a position of only receiving legal advice if disclosure was omitted completely.

The Court of Appeal did not award Mr Entwistle any additional money. The case has been remitted to the High Court to allow Mr Entwistle’s needs to be reconsidered by reference to the Section 25 factors and without taking into account the terms of the prenuptial agreement.  

The court emphasised that this case did not negate the law set out in Radmacher v Granatino, however where parties agreed to provide full and frank disclosure, breach of that agreement deprives the "other party of the information that they have agreed is necessary in order for them to decide whether to agree to a pre-nuptial agreement in the terms proposed."

Therefore, this case highlights that failure to disclose assets and/or dishonesty in the presentation of assets can invalidate the terms of a prenuptial agreement. 

It also emphasises that it is crucial to ensure that both spouses take legal advice regarding the implications and their understanding of the agreement at every step of the negotiation process to ensure that the prenuptial agreement complies with disclosure requirements. Attempting to limit advice or by failing to allow sufficient time to take or understand the advice, particularly of the financially weaker spousal, may also invalidate the terms of a prenuptial agreement. 

Rachel Donald is a partner in the family and children team, advising national and international clients on all aspects of family law including divorce and separation, resolving arrangements for children as well as disputes concerning child maintenance.

Vanessa Opoku is an associate in the family and children team, assisting with all aspects of private family law including divorce, financial disputes and children matters.