Jenny Alzena Helliwell v Simon Graham Entwistle

A nuptial agreement is not generally invalid merely because the parties exchanged no full asset disclosure or legal advice. But where the parties expressly agree that specified disclosure will be made, deliberate concealment that makes a representation of full and frank disclosure untrue may be fraud and a vitiating circumstance. The representor bears the burden of showing by clear and cogent evidence that the deceit was immaterial; the innocent party owes no general duty of due diligence. The agreement must be set aside where the concealment deprived the other party of information agreed to be necessary for the decision to enter it. Needs must then be assessed under section 25 of the Matrimonial Causes Act 1973 without relying on the agreement.

The husband appealed from a final financial remedy order made by Francis J following a short, childless marriage. The judge upheld a drop-hands pre-nuptial agreement but awarded the husband £400,000 to meet his assessed needs. The wife had disclosed approximately £18 million of assets but omitted assets later valued at about £47.9 million.

The appeal challenged the agreement’s enforceability, the timing and circumstances of signature, and the adequacy of the needs assessment. The central issue was whether deliberate non-disclosure, where the agreement expressly required full and frank disclosure, vitiated the agreement and required a fresh assessment.

Appeal allowed. The agreement could not stand and the needs assessment was set aside and remitted to the High Court.

1. The court applied the two-stage approach in Granatino v Radmacher [2010] UKSC 42. The first stage requires consideration of standard vitiating factors, including duress, fraud and misrepresentation. Undue pressure and other unconscionable conduct may also reduce or eliminate the weight of an agreement.
2. Full financial disclosure is not generally a legal prerequisite to a binding pre-nuptial agreement. However, where the parties agree and record that disclosure will be provided, deliberate non-disclosure or misrepresentation must be considered as a possible vitiating circumstance. The court adopted the stringent approach in Cummings v Fawn [2023] EWHC 830 (Fam) and Sharland v Sharland [2015] UKSC 60.
3. The wife knew that substantial business assets and an interest in her mother’s property were in her name and deliberately omitted them. The omission falsified the express representation of full and frank disclosure and amounted to fraudulent non-disclosure. The wife failed to rebut, by clear and cogent evidence, the strong presumption that the deceit was material. The husband was not subject to a duty of due diligence: Takhar v Gracefield Developments Ltd and Others [2019] UKSC 13.
4. The judge had failed to undertake the Stage 1 analysis and had omitted material documentary evidence, including the chronology and emails. His finding that the wife did not know that the assets were in her name could not stand on the totality of the evidence. The appellate court’s intervention was consistent with Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 and Volpi v Volpi [2022] EWCA Civ 464.
5. Because the agreement was vitiated, the husband’s needs had to be reconsidered by reference to section 25 of the Matrimonial Causes Act 1973, without taking the agreement into account. The judge need not address each statutory factor slavishly, but must be seen to have had each part of the section in mind.

The court did not need to determine the remaining grounds concerning the wedding-day signature, undue pressure, mediation or alleged gender discrimination. Signing on the morning of the wedding was highly undesirable, but would not alone have vitiated the agreement on these facts.

• Court of Appeal (Civil Division): Appeal allowed. The pre-nuptial agreement was vitiated by fraudulent non-disclosure, and the needs assessment was set aside and remitted.
• Family Court, Francis J: By the final order dated 15 March 2024, reported at [2024] EWHC 740 (Fam), the agreement was upheld, but the husband was awarded a £400,000 lump sum for his assessed needs.