The Court of Appeal recently handed down judgment in Helliwell v Entwistle [2025] EWCA Civ 1055, examining the importance of disclosure when entering into a pre-nuptial agreement.
To understand why disclosure is important for pre-nuptial agreements, you need to look at its role in divorce proceedings. Full and frank financial disclosure (by which we mean complete, clear and accurate information regarding income, capital assets and liabilities) plays a key role in ensuring fairness and transparency between divorcing spouses. It allows both the parties and the court to see behind the veil of litigation to understand the financial realities of a family, enabling them to consider what might be a fair and workable financial settlement upon separation.
So why is disclosure also important for pre-nuptial agreements?
It is only through the mutual exchange of financial disclosure that both parties can realistically determine what they may be receiving, or conceding, in the event of a separation by signing the pre-nuptial agreement.
How much disclosure is needed?
The leading Supreme Court decision in Radmacher v Granatino back in 2010 confirmed that "the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement." From this we understand that some level of disclosure is necessary for both parties to have a “full appreciation” of the implications of them entering into a pre-nuptial agreement. Rather than requiring full and frank disclosure (as is necessary within divorce proceedings), the court in Radmacher emphasised that “what is important is that each party should have all the information that is material to his or her decision” to enter into the pre-nuptial agreement.
What does this mean in practice?
For some couples this may mean “full and frank” disclosure (reflecting the position on divorce) whereas others may not feel the need to see a detailed list of the other’s assets and liabilities before deciding to commit to an agreement. However, what is clear from the recent case of Helliwell v Entwistle, is that you cannot say you have disclosed fully, when you know you have not!
If a party holds themself out to be providing full and frank disclosure, when in reality they are deliberately choosing not to disclose assets, the court may find such non-disclosure to be fraudulent and therefore capable of nullifying a pre-nuptial agreement. The parties in Helliwell, explicitly agreed in their pre-nuptial agreement to provide full and frank disclosure to one another. However, the wife had in fact disclosed only 27% of her extensive wealth. The wife’s choice to not disclose almost £48 million of her assets amounted to fraudulent material non-disclosure, vitiating the effect of their pre-nuptial agreement. Moreover, owing to her fraudulent conduct, the wife has also been penalised with a hefty costs order in favour of the husband.
Full and frank financial disclosure when drafting pre-nuptial agreements is therefore encouraged as a means of protecting both parties’ interests, and the subsequent validity of their pre-nuptial agreement.
about the authors
Charlotte is a trainee solicitor at Kingsley Napley and is currently in her second seat with the Family & Divorce team. Charlotte joined the firm in September 2024.
Hannah is responsible for knowledge management and practice development for the family team. She is now a Senior Practice Development Lawyer, having been the team’s Professional Support Lawyer since 2017, and previously working as an Associate in the team.
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