A recent decision in the Court of Appeal has highlighted the role of pre-nuptial agreements (PNA) not just as legal instruments, but as reflections of trust, transparency and fairness.
For clients and practitioners, the case of Helliwell v Entwisle offers a timely reminder that the strength of a pre-nup lies not only in its structure, but in the integrity of the process behind it.
Tara Connor-McLaren, Partner in Thring’s Family team, reflects on the implications from the case.
Background
The case of Helliwell v Entwistle centred on Ms Helliwell failure to disclose the full extent of her £66million wealth to her, then fiancé, before they entered the PNA .
The resultant impact was that the PNA was effectively set aside and the Court of Appeal remitted the matter for reconsideration, underscoring the importance of transparency, fairness, and rigorous scrutiny in pre-nuptial arrangements.
Key learnings:
Disclosure is more than a formality
The Court found that Ms Helliwell’s partial disclosure of her wealth when signing the agreement wasn’t a technical oversight, but it significantly undermined the foundation of the agreement. The judgment makes clear that when parties commit to disclosure, they must follow through in substance, not just in form.
Radmacher still stands, but with added nuance
The ruling reaffirms the principles of existing case law (Radmacher v Granatino), where the Supreme Court held that pre-nups should be upheld if entered into freely and fairly.
However, this latest case adds a layer: if parties agree to disclose, and record that agreement, then failure to do so can vitiate the contract. This marks a subtle but important shift, signalling that courts may scrutinise not just the existence of disclosure, but its quality and completeness.
Fairness is a process, not just an outcome
The Court of Appeal’s assessment was that the lower court failed to interrogate the fairness of the agreement properly. The matter was remitted for a fresh hearing, reinforcing that fairness must be assessed with rigour, especially where economic disparity exists.
Lifestyle isn’t entitlement, but needs must be met
While the Court rejected the idea that exposure to wealth creates entitlement, it acknowledged that basic needs, particularly housing and financial security, must be fairly considered.
Is reform on the horizon?
The Helliwell decision adds weight to ongoing discussions around the legal standing of pre-nuptial agreements in England and Wales. While courts increasingly uphold these agreements, they remain subject to judicial discretion, meaning outcomes can vary.
The Law Commission has recommended the introduction of “qualifying nuptial agreements” to provide greater clarity and consistency. Although no legislative changes have been introduced yet, the topic continues to be debated. For now, the most effective approach remains a transparent, well-documented agreement supported by expert legal advice.
How you can build a robust pre-nup agreement
To ensure your pre-nuptial agreement stands up to scrutiny, consider the following steps:
- Be honest and thorough: full and frank financial disclosure is essential. Include all assets, even those held in trust, offshore, or expected in the future. Transparency builds trust and strengthens enforceability.
- Seek independent legal advice: both parties should seek legal advice to ensure the agreement is entered into freely and with full understanding of its implications.
- Document everything: keep clear records of negotiations, disclosures, and legal advice. This paper trail can be invaluable if the agreement is ever challenged.
- Start early: don’t leave the agreement to the last minute. Giving both parties time to reflect and seek advice is essential and helps demonstrate fairness and reduces the risk of future disputes.
- Review and update when needed: life changes, and so should your agreement. If your circumstances shift significantly (e.g. children, inheritance, career changes), consider revisiting the terms.
Tara Connor-McLaren, Partner in Thrings’ Family team, said: “This case is an important reminder that pre-nuptial agreements are only as strong as the transparency behind them. Clients must understand that full and frank financial disclosure isn’t just a legal checkbox; it’s the cornerstone of fairness.”
Thrings Family lawyers are experienced in all areas of the law that are close to home. Whether it is marriages and pre-nuptial agreements, or divorces and separations, they will put your best interests first, taking the time to get to know you so that you are supported with sound advice tailored to your needs. To find out more, get in contact.
