Vitiating factors: non-disclosure in nuptial agreements

In financial remedy proceedings, parties are legally obliged to provide full and frank disclosure of their finances in their Form E.  

It is also advisable that parties provide full disclosure when entering into a nuptial agreement, however, it may not necessarily have to be “full and frank” in the usual manner.  

Why is this important?

The court may not give effect to an agreement where the parties did not have a “full appreciation of its implications”, which suggests that full and frank disclosure is required. But the caselaw suggests that a lower threshold of disclosure may be permitted to uphold a nuptial agreement, compared to the standard usually required in financial remedy proceedings without a nuptial agreement. 

Case Law

In Radmacher v Granatino, the leading authority on nuptial agreements, the Supreme Court held that parties should “have all the information that is material to his or her decision”, which does not necessarily require full and frank disclosure. Furthermore, if a party is fully aware of the implications of a nuptial agreement but is “indifferent to detailed particulars of the other party’s assets, there is no need to accord the agreement reduced weight”. 

This approach has been upheld in subsequent judgments. For example, in Z v Z [2011] EWHC 2878 (Fam), the court held that it was irrelevant that no formal disclosure had taken place as the parties knew each other’s financial position. Furthermore, in BN v MA [2013] EWHC 4250 (Fam), the judge cited Radmacher and determined that full and frank disclosure is not required, only sufficient disclosure to enable the parties to make a free decision.  

Interestingly, in WW v HW [2015] EWHC 1844 the court did not give effect to the nuptial agreement as it did not sufficiently meet the husband’s needs. However, the husband had vastly exaggerated his wealth and financial resources, which is perhaps why the nuptial agreement did not include any provisions for the parties’ needs. He had essentially misled the wife as to his financial standing and presented himself as being financially independent, then sought a significant departure from the nuptial agreement to meet his needs. Due to his conduct, the nuptial agreement was given significant weight despite it not being enforced entirely. The judge ordered a comparatively reduced needs-based award for the husband and stated that he would have to take responsibility for his own dishonesty.  

What This Means for You

• Full and frank disclosure is essential in financial remedy proceedings.

• In nuptial agreements, a lower threshold of disclosure may be acceptable, but transparency is still crucial.

• Misleading your spouse or failing to disclose key financial information can undermine the agreement or reduce your award.

If you have a nuptial agreement with your spouse but are concerned about their disclosure, or they have accused you of non-disclosure, contact Vardags today for a free initial consultation with one of our expert divorce solicitors. 

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