Prenuptial agreements have become increasingly common in the UK, particularly among high net worth individuals, business owners, and those entering second marriages. When divorce occurs and a prenuptial agreement exists, the legal landscape differs significantly from standard divorces. Understanding how these agreements influence divorce proceedings is essential for anyone with a prenup who is considering or facing separation.
The recent case of Helliwell v Entwistle serves as a crucial reminder of the importance of full and frank disclosure in prenuptial agreements. In this case, the Court of Appeal set aside a prenuptial agreement due to Ms Helliwell’s deliberate non-disclosure of approximately £47.8 million in assets – representing nearly 73% of her wealth – when she had disclosed only £18.2 million during the prenuptial negotiations.
The Court found that this material non-disclosure amounted to “fraudulent” behaviour that vitiated the agreement entirely. Lady Justice King emphasised that where parties have expressly agreed to provide full disclosure, “wilful or fraudulent breach of that agreement” is capable of being material non-disclosure, as it deprives the other party of information necessary to make an informed decision about signing the prenuptial agreement.
The case has been remitted to the High Court for fresh consideration of the husband’s needs without reference to the invalidated agreement, demonstrating that attempts to hide assets can ultimately leave parties with less protection than if they’d never signed an agreement at all.
Unlike in some countries, prenuptial agreements are not automatically legally binding in England and Wales. However, since the landmark Supreme Court case of Radmacher v Granatino in 2010, courts have given significant weight to properly prepared prenuptial agreements, provided certain conditions are met.
The current legal position is that the terms of a prenuptial agreement may be upheld by the Court in the event of a dispute as long as the agreement is freely entered into by each party with a full appreciation of its implications, unless it would be unfair to hold the parties to their agreement.
When considering a divorce where a prenuptial agreement exists, the Court will consider the full circumstances and take a holistic approach when making its decision as to whether to uphold all or part of an agreement. Several factors determine how much weight the court will give to the agreement:
The court will examine whether the agreement was procedurally fair when created. Key considerations include:
If these procedural safeguards were not followed, the court may give less weight to the agreement or potentially disregard it entirely.
Even if procedurally fair, the court will consider whether the agreement’s terms remain fair at the time of divorce:
Courts are particularly unlikely to uphold agreements that leave one party in a position of real need or that fail to provide adequately for children of the marriage.
It is therefore essential to review prenuptial agreements regularly, perhaps at specific time intervals in addition to life changing events such as the birth of a child, children reaching majority, expected inheritances etc.
When divorcing with a prenuptial agreement in place, the process involves additional considerations:
The first step is a thorough review of the prenuptial agreement to determine:
This assessment forms the foundation of the strategy for negotiations or court proceedings.
Even with a prenuptial agreement in place, both parties must still provide full financial disclosure during divorce proceedings. This serves two purposes:
The disclosure process may be streamlined where a ‘prenup’exists, but it cannot be avoided entirely.
Many divorces involving prenuptial agreements are resolved through negotiation rather than contested court proceedings. During negotiations:
Successfully negotiated settlements often strike a balance between upholding the ‘prenup’ and addressing any genuine fairness concerns.
If court proceedings become necessary, the prenuptial agreement will be a significant factor in the court’s deliberations:
The court retains ultimate discretion but will not interfere with a valid prenuptial agreement, which meets the needs of the parties, without good reason.
Several grounds are commonly used to challenge the enforceability of prenuptial agreements during divorce:
The most successful challenge to prenuptial agreements is that they fail to meet the reasonable needs of one party, typically the financially weaker spouse. Courts in England and Wales will not uphold agreements that leave one party in a position of genuine need, regardless of what was agreed.
This “needs flaw” represents a significant limitation on prenuptial agreement enforcement and means that agreements seeking to eliminate financial support entirely are unlikely to be fully upheld.
Courts prioritise the welfare of children above prenuptial agreements. Challenges based on insufficient provision for children can be compelling, particularly if:
Successful challenges often involve demonstrating significant unforeseen changes since the agreement was signed, such as:
The more substantial and unpredictable the change, the stronger this challenge becomes.
Technical challenges focus on how the agreement was executed:
These procedural issues can substantially weaken or invalidate a prenuptial agreement.
The impact of a prenuptial agreement on divorce outcomes varies considerably depending on the specific circumstances:
In cases where the agreement was properly executed and remains fair, the court may enforce it fully, resulting in:
Full enforcement is more likely when both parties remain financially independent and where the agreement’s terms provide reasonably for both parties needs.
More commonly, courts take a middle ground approach:
This approach respects the parties’ autonomy while ensuring basic fairness.
In some cases, particularly where procedural safeguards were lacking or where outcomes would be manifestly unfair, the court may:
This is more likely with agreements that fail to provide for basic needs.
If you’re facing divorce and have a prenuptial agreement, consider these practical steps:
As soon as divorce becomes a possibility, review the prenuptial agreement with a specialist solicitor to:
Early assessment prevents surprises and enables informed decision-making.
Collect evidence relating to the creation of the agreement:
This evidence can be crucial in establishing the agreement’s validity and the parties’ intentions.
Alternative dispute resolution can be particularly effective with prenuptial agreements:
These approaches often result in faster, less costly resolutions than contested court proceedings.
Despite having a prenuptial agreement, you will still need to provide updated financial disclosure:
Comprehensive preparation facilitates smoother proceedings regardless of the approach taken.
At RLK Solicitors, our family law team has extensive experience handling divorces involving prenuptial agreements, particularly for high net worth individuals. We provide:
Our approach combines technical legal expertise with practical, outcome-focused guidance, ensuring your interests are protected throughout the divorce process.
Whether you’re seeking to uphold a prenuptial agreement or challenge its provisions, our team provides the specialised support needed to navigate these complex cases effectively.
If you’re considering or facing divorce and have a prenuptial agreement in place, contact RLK Solicitors for expert advice tailored to your circumstances. We’ll help you understand the likely impact of your agreement and develop an effective strategy for your divorce proceedings.
Call us on 0121 450 7800 or email enquiries@rlksolicitors.com to arrange a consultation.
Alisha is a highly experienced family solicitor with over 10 years’ experience in family law. She leads RLK’s Family & Divorce team and is known for her practical, empathetic advice and firm representation in complex and sensitive matters.
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