CA-2024-000509 - [2025] EWCA Civ 1055

It is clear in this case that the judge did not undertake what is now typically referred to as the Stage 1 analysis, as described by Lord Philips at para. [71] “The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present”.

In the present case the non-disclosure of the majority of her assets by the wife was undoubtedly deliberate. The wholesale exclusion of the wife’s business assets and her interest in the Wimbledon house in which her mother lived, was of a wholly different complexion from an agreement that round or approximate figures would be provided in respect of certain classes of assets, as was quite properly done in relation to the selection of assets which the wife chose to disclose in Appendix A.

Given that the wife was aware that the business assets and her mother’s home were in her name, and her evidence was that she made a deliberate decision not to disclose them (albeit, on her case, for reasons connected to tax), it is in my judgment inescapable that her decision not to disclose those assets was fraudulent. Moreover, as in Cummings, this was not simply a failure to disclose: the deliberate non-disclosure falsified and made untrue the wife’s express representation to the husband at Recital (R) of the agreement that she had made full and frank disclosure of her financial resources.

That would be bad enough: but the wife’s deceit was made all the worse because the agreement contained a certificate signed by her lawyer that she had been given legal advice and where her lawyer had previously given a clear indication to the husband in the email of 12 June 2019 that he would be advising his client to make full disclosure of her assets. The wife’s lawyer also emphasised that it was understood on the wife’s side that absent disclosure, the validity of the agreement would be open to challenge.

It was also clear from the terms of the agreement itself that the statements in Appendix A were intended to induce the husband to enter into the agreement. That much is readily apparent from Recital (S) which stated in terms that the disclosure in Appendix A was “substantially complete in all material respects, and on this assumption [each of the parties] voluntarily and expressly accept the disclosure provided by the other as being sufficient to enter into this agreement”.

The question nonetheless remains, as to whether, although the wife’s concealment of the majority of her assets was fraudulent, had she discharged the evidential burden of showing by way of clear and cogent evidence that her deceit was immaterial.

Given the huge disparity between the actual disclosure and the wife’s true wealth and that Ms Klyne had expressed her concern; (i) that the agreement had to demonstrate that the husband’s needs would be met, and (ii) that she would also expect disclosure in order to negotiate with the other side, it is clear that a mere assertion on the wife’s part that the non-disclosure was not material to the husband cannot be said to amount to clear and cogent evidence of that fact.

The high-water mark of the wife’s case in this respect was that the husband had told Ms Klyne that he was (i) willing in principle to enter into a drop hands agreement; and (ii) that he had said in the copy and paste email that the wife had drafted (either on her own or with her father) and which the husband had simply forwarded to her lawyers, that he was prepared to go along with Option 1 and therefore receive no disclosure.

But matters did not rest there. In their reply the following day, the wife’s lawyers insisted upon Option 2 under which disclosure would be given by the wife to the husband, and they had explained why they would be advising the wife to make disclosure in order that the validity of the agreement could not be questioned by a court. The husband then accepted Option 2 on the basis that he would respect the wife’s request for privacy by agreeing that his legal advisers would not see details of her wealth (thus depriving himself of further legal advice). But that was on the express basis – consistent with the explanation by the wife’s lawyers and confirmed by Recitals (R) and (S) in the agreement - that the husband would himself see the full and frank disclosure to be contained in Appendix A.

In the end, of course, the husband had the worst of both worlds: no legal advice once disclosure was made and no honest disclosure to inform his decision making. There was, moreover, no clear evidence that, having accepted Option 2, the husband thereafter placed no reliance on the contents of Appendix A and Recitals (R) and (S). Further, because (as I have indicated above) the judge’s analysis of disclosure was incomplete and based upon the mischaracterisation of the wife’s deceit as simply being “a lower number than the truth or than it should have been”, he made no findings which could properly support a conclusion that the contents of Appendix A played no part in the husband’s decision to enter into the agreement.

Accordingly, in my judgment had the judge properly addressed Stage 1, he would inevitably have concluded that the deliberate decision by the wife not to disclose her business assets and her interest in her mother’s house amounted to fraudulent non-disclosure which vitiates the agreement.

I should emphasise that this is a conclusion on the facts of this case and, in reaching it, it should not be thought that there has been 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. The law is unchanged. So long as there is no statutory scheme, Radmacher will continue to bind this court; disclosure is desirable but not essential and that is equally the case with legal advice. Pre-nuptial agreements are about the autonomy of the parties to determine for themselves what should be the fair outcome in the event that their marriage fails.

Where however, as here, the parties agree and record in the document the extent of and approach to be taken to disclosure, they are agreeing as to what information is to be made available to enable each of the parties to make a decision as to whether they wish to be bound by the terms contained in the proposed agreement. Wilful or fraudulent breach of that agreement such that the disclosure made bears no resemblance to the true wealth of a party is entirely different from the position in Radmacher. In my judgment, such conduct is capable of being material non-disclosure as it deprives the other party of the information that they have agreed is necessary in order for them to decide whether to agree to a pre-nuptial agreement in the terms proposed.

Since the husband in the instant case was deliberately deprived of information which it had been agreed that he should have, in my judgment, the agreement cannot stand. It follows that the appeal must be allowed because the non-disclosure by the wife was (adopting Stage 1 of Lord Philips’ approach) a vitiating circumstance which negated the effect of the agreement.

As the appeal must be allowed on this basis there is no need to go further and determine the other grounds of appeal which relate to the date of the agreement, undue pressure, or the wife’s failure to mediate. Having said that, whilst the fact that the agreement was not produced for the husband to sign until the morning of the wedding would not on the facts of this case have in itself been sufficient to vitiate the agreement, it was clearly highly undesirable and underlined that the wife and her father were in control of the process at all times.

Turning then to the judge’s assessment of the husband’s needs. The judge did not consider the husband’s needs by reference to section 25 MCA. The only mention made in the judgment to section 25 MCA was in the context of the enforceability of the agreement where the judge comments that the section guides the decision and discretion of the judge but that section 25 does not mention pre-nuptial agreements. Whilst it is trite law that an experienced judge does not have to go slavishly through each part of section 25 MCA, the court must nevertheless be seen to have in mind each part of the section. The judge’s approach was to consider the husband’s needs by reference only to the schedule of needs which had been submitted on his behalf and not by reference to section 25 MCA and arguably he did not take into account, for example, the standard of living the parties had enjoyed, albeit in the context of a short marriage.

The judge’s assessment of needs was understandably influenced by his decision that the agreement must be effected. For example, he said that it would be wrong ‘in the context of the agreement’ to expect the wife to buy the husband a house. The authorities are clear that the approach to needs is different where the pre-nuptial agreement has been upheld, see by way of example: HD v WB where Peel J held at para. [99] that the terms of the pre-nuptial agreement operated as a ‘limiting factor upon considering H’s requirements’ and Xanthopoulos v Rakshina [2024] EWCA Civ 84 where the Court of Appeal upheld a ‘needs light’ approach in a case where a pre-nuptial agreement had been upheld. That being the case, the judge’s assessment of the husband’s needs must be set aside and reconsidered by reference to the section 25 MCA factors and without taking into account the terms of the agreement.

For all these reasons, if their Lordships agree, the appeal must be allowed.