Fraud, needs, and gender discrimination in pre-nuptial agreements

More than 15 years after the Supreme Court decided that pre-nuptial agreements would be given effect unless unfair in Radmacher v Granatino [2010] UKSC 42, questions remain as to when it would be unfair to uphold an agreement’s terms. The issue of disclosure, however, is relatively settled. As the Supreme Court clarified in Radmacher, the court must ask whether there was any ‘material lack of disclosure’ depriving a party of ‘all the information that is material to his or her decision’ to enter the agreement in question [69]. Put simply, does the lesser-moneyed spouse have a broad sense of the financial claim they are relinquishing in the event of divorce, by signing the nuptial agreement? In Helliwell v Entwistle [2025] EWCA Civ 1055 the Court of Appeal decided that the husband did not. It was therefore unsurprising that the pre-nuptial agreement in question was set aside for fraudulent non-disclosure, especially since fraud generally affects the enforcement of any contract. Indeed, as King LJ asserted, it ‘should not be thought’ that Helliwell has brought about ‘some sort of seismic or even modest shift in the court’s approach to non-disclosure in cases where there is a pre-nuptial agreement’ [122]. Still, this case is useful both in clarifying when disclosure is inadequate and in exposing other complexities affecting nuptial agreements, which in turn suggest the need for reform. These include the courts’ diverging approaches when assessing needs, the approach of the court when the lesser-moneyed spouse is the husband, and why the lower court did not identify fraudulent non-disclosure as a vitiating factor.