Helliwell v Entwistle [2025] EWCA Civ 1055

Judgment date: 31 July 2025

https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/1055

King, Moylan and Snowden LJJ. The Court of Appeal allowed the husband’s appeal against the final order made by Francis J on 15 March 2024, emphasising the importance of full and frank disclosure in pre-nuptial agreements when agreed by the parties.

Background and litigation history

The parties met in 2016, began cohabiting in 2017, and married in 2019. The marriage came to an end in 2022, making it a short, childless marriage. This was the first marriage for the wife (W), and the second marriage for the husband (H), both now in their early forties.

W comes from a very wealthy family, personally owning assets worth between £60 to £70 million, with an annual income of approximately £650,000 working for her father. H has assets of around £850,000, formerly working as a qualified accountant with a salary of £120,000, but is currently unemployed.

On the day of their wedding, the parties entered into a ‘drop-hands’ pre-nuptial agreement. Under this agreement, each party would retain their own property, jointly owned property would be split 50:50, and neither party could make financial claims arising from the marriage.

The agreement defined ‘current separate property/assets’ as ‘any and all property of any nature owned directly or indirectly by a party to this Agreement on the date of its execution’. This was to include assets set out in Appendices A (W’s assets) and B (H’s assets).

It also included key recitals:

• Recital R: both had fully and frankly disclosed their financial resources.
• Recital S: disclosure was not completely detailed but was substantially complete in all material respects and on this assumption they voluntarily accepted the disclosure as sufficient.

H’s solicitor, through an evidenced attendance note, warned him of the implications of the agreement, and refused to sign a lawyer’s certificate without full disclosure. Only W’s certificate was completed.

H then sent a ‘copy-and-paste’ email to W’s solicitors. The email, drafted by W, detailed that option 1 of omitting the appendices was preferable over option 2 of including them. Even though W’s solicitors settled on option 2, W failed to disclose assets worth £43m, approximately 73% of her wealth, and H did not obtain further legal advice once the faulty disclosure had been made. The wife later explained these deliberate omissions on the basis of inheritance planning, tax considerations, privacy and her view that the assets belonged to her parents, although they were legally hers.

High Court decision

Francis J found W honest and reliable, and H ‘less than honest’ in parts of his evidence. He held that H was intelligent and capable of understanding the agreement’s significance. The judge described the central ‘drop hands’ clause as comprehensive and drafted in clear, plain English.

The judge acknowledged that full and frank disclosure is the ‘gold standard’ in pre-nuptial agreements and noted that W did not provide complete disclosure. However, he held that H was aware W was extremely wealthy, and so H could not rely on this partial disclosure to escape the agreement.

Francis J found that it would have been ‘wrong’ under the terms of the agreement for a housing provision to be made for H. Consequently, he made a modest lump sum order of £400,000 for H’s rent and income.

Court of Appeal decision

H’s case

• W was guilty of deliberate misrepresentation in her disclosure thereby vitiating the agreement. This formed the first ground of appeal.
• H had been put under undue pressure.
• In only considering the attendance note as opposed to all emails, the judge had an incomplete picture of the factual context.
• W was aware of the consequences of non-disclosure and she deliberately only disclosed those assets which H knew about.
• Francis J, in conducting the needs assessment of H, failed to consider s 25 MCA 1972 factors and was guilty of gender discrimination in his analysis.

W’s case

• Parties had chosen autonomy.
• Sufficient disclosure was made – H knew W was rich, H was indifferent to the particulars of W’s wealth, and H agreed to the drop hands agreement.
• Francis J’s needs assessment did not need to be made at all.

Legal framework

The starting point is the two-stage approach established by Lord Phillips in Granatino v Radmacher [2010] UKSC 42 (‘Radmacher’), and confirmed by Moor J in MN v AN (Prenuptial Agreement) EWHC 613 (Fam). The two stages are as follows:

1. Whether any of the standard vitiating factors (duress, fraud, misrepresentation) or other unconscionable conduct (undue pressure) are present to eliminate or reduce the weight to be attached to the agreement. This stage was made with reference to Edgar v Edgar [1980] 1 WLR 1410.
2. If no vitiating factors are found, whether it would be fair to hold the parties to the agreement?

While Radmacher makes it clear that disclosure of assets is not a legal requirement for a binding pre-nuptial agreement, the court must consider whether deliberate non-disclosure or misrepresentation vitiates the agreement if parties have expressly agreed that disclosure should be provided.

Where fraudulent non-disclosure or misrepresentation is intended to induce the other party to enter into a pre-nuptial agreement, the representator bears the burden of rebutting with clear and cogent evidence a strong presumption that deceit was material to the decision to enter into the agreement. The court relied on authorities including cases of Cummings v Fawn [2023] EWHC 830 (Fam), Cathcart v Owens [2021] EWFC 86, Sharland v Sharland [2015] UKSC 60, and Takhar v Gracefield Developments Ltd and Others [2019] UKSC 13.

Finally, the court confirmed that, where a pre-nuptial agreement is upheld, a ‘needs light’ approach should be taken in determining financial provision (HD v WB [2003] EWFC 2 and Xanthopoulos v Rakshina [2024] EWCA Civ 84).

Held

The Court of Appeal found that W’s deliberate non-disclosure of her business assets and her interest in her mother’s home was fraudulent. This was not a minor misstatement: 73% of her assets were deliberately withheld for tax reasons. This amounted to a falsification of her representation in Recital R. W actively controlled the disclosure process, including sending H the ‘copy and paste’ email, which placed him in a position where he could not obtain legal advice on the disclosure.

Recital S demonstrated that the disclosure was intended to induce H to sign, placing the burden on W to prove with clear and cogent evidence that her deceit was immaterial. She failed to meet this burden.

Although H limited his solicitors’ access to the appendices, the parties had expressly agreed that disclosure was required, so H was entitled to rely on Appendix A. There was no evidence that he disregarded this appendix or Recitals R and S, making W’s omissions material.

The High Court judge had failed to properly undertake stage 1 of the Radmacher approach. Had he done so, he would have concluded that the deliberate deprivation of information vitiated the pre-nuptial agreement due to fraudulent non-disclosure. While disclosure and legal advice are not usually essential for a pre-nuptial agreement to carry weight, in this case the parties had expressly agreed the extent and approach to disclosure. Because that agreement was not honoured, Radmacher was distinguished.

Other grounds of appeal, including the proximity of the agreement to the marriage, alleged undue pressure, and W’s failure to mediate, were not determined; [125].

Next steps

The Court of Appeal remitted the case back to the High Court for a full assessment of the husband’s needs, in particular his housing provision. The reassessment is to consider both H’s schedule of needs and the s 25 MCA 1973 factors, with the pre-nuptial agreement set aside.