For all the attention that cryptocurrency has attracted in family law, one key truth often gets lost: while crypto hasn’t rewritten any legal principles, the tracking and tracing of digital assets is often that much more complicated.

There’s a perception that digital assets sit in some grey zone where the law hasn’t quite caught up. Many asset‑holders worry their online wealth falls outside traditional modes of protection. But once you block out the online noise, the landscape is far more familiar than it seems.

Crypto is not a legal anomaly

In England and Wales, cryptocurrency is already recognised as property. Courts can identify, value and distribute it under the same legal frameworks that apply to any other asset. A prenuptial agreement that includes cryptocurrency is nothing exotic — they should be prepared following the same principles as any other agreement of this kind:

·        there needs to be a full and frank disclosure of each party’s financial position;

·        both parties should take (or have the opportunity to take) independent legal advice and have a full appreciation of the implications of their agreement;

·        they should be freely entered into;

·        the agreement should not leave the financially weaker party in a position of dire need (it needs to be fair).

·        ideally they will be entered into at least 28 days prior to the wedding

There’s no new test to apply and no legal revolution required.

The real challenge: disclosure

However, what crypto really changes is not the law, but the ease of concealment. The basic problem remains: you can only divide what you can find.

For decades, wealthier parties have often sought to hide assets in offshore accounts, obscure investments or third‑party structures. Crypto has simply handed them new tools — cold wallets, multiple accounts, rapid, often anonymous transfers. The technology may be new; the behaviour is not.

For financially weaker clients, the struggle is the same: proving the existence of something that the other party insists doesn’t exist. Tracing crypto is possible, but it’s often expensive. Forensic analysts and blockchain experts can help, but few clients can justify the cost without solid proof that an asset is there. The court is, understandably, reluctant to send parties on speculative hunts. That can put a financially weaker spouse at a disadvantage. While the court can make adverse inferences, it will not make huge speculative leaps, nor sanction fishing expeditions in the hope of unearthing the digital gold.

Can a prenuptial agreement protect digital assets?

In and of itself, entering into a prenuptial agreement is not a panacea for the additional complexity (such as tracing and tracking) that digital assets can involve. Following the recent Court of Appeal decision in Halliwell v Entwhistle, the court has made clear that where the financial disclosure made by one party bears no resemblance to the true position, that “material non-disclosure” can result in the agreement being set aside. Clients should disclose everything during the disclosure process. Digital assets may be difficult to find but not impossible. Even if a couple intends to respect the terms of a prenuptial agreement, financial disclosure is always going to be strongly advised so that the current picture can be ascertained. This may reveal hitherto undisclosed or undervalued assets at the time the agreement was entered into.  

Where now?

So, is crypto a new frontier for non‑disclosure, or simply the same challenge in a new form?
The answer lies somewhere in between.

Crypto can add complexity and opacity but the core issue endures: any legal system that depends on honesty will always struggle with assets that can vanish at the click of a button.

The law doesn’t need to catch up with crypto. But both couples and courts must recognise that digital wealth can move faster and further than traditional assets ever could.

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