UK – SOUTH WEST Trends and Developments Contributed by: Will MacFarlane, Sarah Dodds, John Ebenezer and Jennifer Headon, Birketts LLP
Key Cases That May Have Moved the Dial? We have already dealt with Helliwell v Entwistle [2025] EWCA Civ 1055 above. The Supreme Court delivered last year’s most consequential financial remedies decision in Standish v Standish [2025] UKSC 26. This confirmed that the sharing principle attaches to mat ‑ rimonial property, not non-matrimonial, while recog ‑ nising that non-matrimonial assets may be “matrimo ‑ nialised” where, over time, the parties treat them as shared. Equal sharing of matrimonial assets remains the principled starting point, subject to needs and, where engaged, compensation. The inquiry into mat ‑ rimonialisation is holistic; “mingling” is relevant but not determinative, and contrary to the Court of Appeal judgment, matrimonialisation should be regarded as neither “narrow nor wide”. The facts? The husband transferred c. £78–£80 million of pre- acquired wealth into the wife’s sole name during the marriage as part of an estate/tax planning exercise. At first instance, the assets were treated as matrimonial and divided 60:40. The Court of Appeal then sharply reduced the award, emphasising the non-matrimonial provenance before the Supreme Court upheld that In big money cases, it may now be easier to ring-fence non-matrimonial wealth, and sharing claims must now clear a higher bar where the assets for division com ‑ fortably exceed needs. We are likely to see a more forensic analysis of source of funds, and tracing exer ‑ cises may become more common. In the absence of contemporaneous documentary evidence (which may not always be available), there will be more focus on parties’ historic intentions regarding the treatment of assets. This may cause additional disputes and require judges to make determinations of fact, with reference only to very different recollections by parties of what had or had not been agreed. stricter approach. Practical effect? • Estate planning: Inter-spousal transfers for tax/ structuring will not automatically “matrimonialise” the assets. Family and private client teams should co-ordinate contemporaneous records of inten ‑ tion (eg, letters of wishes) to resist future sharing claims, and the use of nuptial agreements should
civil partnership and cohabitation. For internationally mobile parties, it is likely to address how English law should treat foreign nuptial agreements and interpret civil law marital property regimes. The Court of Appeal’s decision in Helliwell v Entwistle [2025] EWCA Civ 1055 looked again at two Rad- macher tests: (i) the extent of disclosure needed for an agreement to carry weight, and (ii) the application of ordinary contractual vitiating factors. The Court con ‑ firmed that Radmacher does not require comprehen ‑ sive disclosure at the level needed within proceedings and the test remains whether each party had informa ‑ tion material to the decision to sign an agreement. The judgment offers practitioners practical guidance on proportionate disclosure and reinforces the impor ‑ tance of process (timing, advice, absence of pressure) to the weight an agreement will ultimately attract. Recent commentary in the Financial Remedies Jour- nal has captured the growing comparative and cross- border pressures. The English courts are increasing ‑ ly asked to respect autonomy where couples have elected foreign matrimonial property regimes or have executed foreign (often civil law) marriage contracts. Many practitioners have argued that this strengthens the case for a statutory “qualifying nuptial agreement” model that provides predictability, while still preserv ‑ ing a needs floor and protections against unfairness. Many French-headquartered businesses have a sig ‑ nificant presence in the South West (particularly in the aerospace and defence sectors), meaning that family lawyers in our region are frequently asked to advise on the impact of civil law marriage contracts on out ‑ comes in proceedings here. The 2026 consultation is likely to propose: (i) a statu ‑ tory definition of qualifying nuptial agreements; (ii) minimum advice/disclosure/timing criteria; (iii) a clear non-derogation from the needs principle; and (iv) rules governing the recognition of foreign agreements. Prior to the government legislating, practitioners should tighten process around disclosure and continue to draft agreements with an eye on the likely future statu ‑ tory criteria.
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