Fraudulent Non-Disclosure as a Vitiating Factor in Prenuptial Agreements – Helliwell v Entwistle ([2025] EWCA Civ 1055)

1. Introduction

The Court of Appeal’s decision in Helliwell v Entwistle represents the most significant development in English family law since Granatino v Radmacher (“Radmacher”) clarified the modern approach to nuptial agreements in 2010. The Court has held, in unequivocal terms, that where the parties agree to make full disclosure as part of a prenuptial agreement (“pre-nup”) and one party then deliberately withholds a material portion of their wealth, that fraudulent non-disclosure will vitiate the agreement entirely.

The case arose out of a short, childless marriage between Simon Entwistle (“the husband”) and the considerably wealthier Jenny Helliwell (“the wife”). A so-called “drop-hands” pre-nup was executed on the day of the wedding, purporting to exclude all future financial claims. However, the wife had concealed approximately 73 % of her assets (worth some £48 million) when completing the schedule of disclosure expressly required by the draft agreement. At first instance Francis J upheld the pre-nup (albeit granting the husband £400,000 for needs). On appeal, the husband contended that the deliberate non-disclosure was fraudulent and rendered the agreement unenforceable. The Court of Appeal (King LJ giving the leading judgment, with Moylan & Snowden LJJ concurring) agreed and remitted the case for a full needs reassessment.

2. Summary of the Judgment

• The first instance judge erred in treating the wife’s non-disclosure as a mere imperfection while nonetheless giving determinative weight to the agreement.
• Applying the two-stage test from Radmacher, the Court of Appeal focused on Stage 1 (factors that reduce or eliminate weight). It held that the wife’s behaviour amounted to fraudulent non-disclosure and thus fell within “standard vitiating factors” (fraud/misrepresentation).
• Because the appendices and recitals made disclosure a contractual pre-condition of the pre-nup, depriving the husband of that information voided the consent on which the agreement depended.
• The burden fell on the fraudulent party to prove immateriality (per Sharland & Takhar). The wife failed to discharge that burden.
• The agreement therefore could not stand; the assessment of the husband’s needs would have to be reconsidered de novo without the “needs-light” discount that flows from an effective pre-nup.

3. Analysis

3.1 Precedents Cited and Their Influence

The Court’s reasoning is rooted in a dense tapestry of prior authorities:

• Granatino v Radmacher [2010] UKSC 42 – established the modern two-stage test: (1) is the agreement tainted by vitiating factors? (2) even if untainted, would it be unfair to hold the parties to it? Helliwell is the first appellate decision to invalidate a pre-nup at Stage 1 for fraudulent non-disclosure.
• Sharland v Sharland [2015] UKSC 60 – concerned fraudulent non-disclosure within consent orders; created the presumption that fraud is material unless the perpetrator proves otherwise. King LJ imported that presumption into the pre-nup arena.
• Takhar v Gracefield [2019] UKSC 13 – confirmed a party is entitled to assume honesty; no duty of “due diligence” on the victim. Applied here to reject suggestions that the husband should have ferreted out the undisclosed assets.
• Cummings v Fawn [2023] EWHC 830  and  Cathcart v Owens [2021] EWFC 86 – emphasised that deliberate non-disclosure in Xydhias/consent-order contexts is “a species of fraud.” King LJ treated prenuptial agreements identically.
• WC v HC [2022] EWHC 22  and  MN v AN [2023] EWHC – recent High Court cases refining the post-Radmacher two-stage exercise. Helliwell aligns with these yet goes further by giving appellate endorsement.
• Gestmin SGPS v Credit Suisse [2013] EWHC 3560 – authority on documentary reliability vs memory; misapplied at first instance but reaffirmed by the Court of Appeal’s documentary reconstruction.

3.2 The Court’s Legal Reasoning

1. Contractual Expectation of Disclosure
   The parties had expressly covenanted in recitals R & S and in the definitions section that each would make “full and frank” disclosure, identifying “any and all property.” Appendices were therefore integral, not optional. The wife’s omission of £47.8 million was not an incidental understatement but a clear breach of an agreed condition precedent.
2. Fraudulent Non-Disclosure = Vitiating Factor
   Under Radmacher, fraud is a primary vitiating factor. Borrowing from Sharland, the Court found the non-disclosure “wholly different” from mere approximation; it falsified an express representation and therefore constituted fraud.
3. Burden of Disproving Materiality
   Fraud gives rise to a rebuttable presumption of materiality. The wife adduced no “clear and cogent” evidence that the husband would have signed irrespective of learning she was worth three times more than admitted. Her argument that he knew she was “extremely wealthy” was insufficient.
4. No Duty of Due Diligence on the Innocent Party
   Per Takhar, an innocent spouse is not required to “look behind” a contractual statement of assets. The husband’s failure to demand further documents was irrelevant once deceit was proved.
5. Consequential Re-Assessment of Needs
   Because the agreement was void, the “needs-light” approach (limiting the award to £400k) could not stand. The appellate court therefore set aside that order and remitted for a full Section 25 Matrimonial Causes Act (“MCA 1973”) evaluation, unconstrained by the pre-nup.

3.3 Likely Impact on Future Cases

• Drafting Practice – Solicitors will now treat disclosure clauses with the same gravity as consideration clauses; clients must be warned that inaccurate schedules can collapse the entire bargain.
• Litigation Strategy – Parties challenging pre-nups will scrutinise disclosure more aggressively. Conversely, wealthy parties must now appreciate that hiding assets could strip them of the very autonomy they seek.
• Judicial Analysis – High Court judges are put on notice to conduct a documentary “Stage 1” inquiry before defaulting to autonomy rhetoric. Expect more rigorous chronological analysis of negotiations.
• Harmonisation with Post-Nup/Consent Orders – By importing Sharland principles into the pre-nup sphere, the decision narrows the doctrinal gap between different types of marital agreements.
• Law Commission’s 2024 Scoping Report – The judgment indirectly endorses the Commission’s recommendation that disclosure should be mandatory and non-waivable, potentially accelerating legislative reform.

4. Complex Concepts Simplified

• Prenuptial Agreement (“Pre-nup”) – A contract entered before marriage setting out how assets will be divided if the couple divorces. English courts treat them as persuasive but not automatically binding.
• Drop-hands Agreement – A pre-nup in which each party “drops” all claims against the other, keeping only what is already in their respective names.
• Vitiating Factor – A defect (duress, fraud, misrepresentation, undue influence) serious enough to destroy the legal effectiveness of an agreement.
• Stage 1 / Stage 2 Test – From Radmacher: Stage 1 asks whether vitiating factors reduce/eliminate weight; Stage 2 asks whether enforcing the agreement would nevertheless be unfair under Section 25 MCA.
• Fraudulent Non-Disclosure – Deliberately hiding information one is duty-bound to reveal. Courts presume it is material; the fraudster must prove otherwise.
• Section 25 MCA 1973 – The statutory checklist (income, needs, standard of living, contributions, etc.) guiding the court’s discretionary division of assets on divorce.
• Materiality – Whether the undisclosed fact would have influenced a reasonable person’s decision to enter into the agreement. In fraud cases, materiality is presumed.

5. Conclusion

Helliwell v Entwistle is a landmark clarification that the autonomy afforded by pre-nuptial agreements carries a corresponding duty of candour. The decision stakes out four pivotal propositions:

1. If parties stipulate that disclosure is part of the bargain, deliberate non-disclosure will be treated as fraud.
2. Fraud is a vitiating factor under Radmacher Stage 1; the agreement will be set aside unless the fraudster proves immateriality.
3. The innocent party owes no investigative or “due diligence” burden; honesty is presumed.
4. Where a pre-nup falls, the usual Section 25 analysis is fully re-opened; “needs-light” awards derived from the invalid agreement cannot persist.

Practitioners must therefore re-evaluate both drafting and litigation tactics: full and frank disclosure is now not merely “best practice” but a condition upon which the survival of the entire pre-nup may depend. In the wider legal landscape, Helliwell realigns prenuptial agreements with the post-Sharland ethos of transparency, ensuring that private autonomy cannot be weaponised through deceit.