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

The husband and wife entered into the agreement on the day they married, 12 July 2019.

The actual interpretation of the agreement as such is not in dispute. It was drafted in terms of a ‘drop-hands’ agreement, that is to say that upon divorce, each party would retain their own separate property and split any jointly owned property as to 50% each. The agreement provided for English governing law and jurisdiction and stated that neither would bring a claim in another jurisdiction. At the heart of the dispute is whether the wife’s undoubted failure to disclose the majority of her substantial wealth should have the consequence that the agreement should not be upheld by the court.

A proper understanding of the course of the negotiations on both sides and the form and extent of disclosure leading up to the signing of the agreement is important and must be established before one can go on to determine whether there has been material non-disclosure on the part of the wife in the circumstances of the case. It follows that I do not agree with the judge’s view at para. [81] that ‘the focus in this case is not about the advice that the wife received but the advice that the husband received’.

It is common ground that having become engaged in around December 2017, the possibility of a pre-nuptial agreement was first raised towards the end of 2018. In March 2019, the husband told Sam Hall, the solicitor who had represented him in his first divorce, that a pre-nuptial agreement was being considered.

On 12 May 2019 the husband sent an email to Sam Hall, saying that he was anticipating receiving a draft prenuptial agreement and asking if it could be reviewed on his behalf. He said:

“I do not wish this step to become a long drawn out process as we are agreed on the fundamentals however clearly I am keen to ensure that everything from a legal perspective is correct. I therefore really only need a brief “red flag” review of the document done by your team – i.e. what I need to be aware should I enter into an agreement as is currently drafted.”

The draft agreement was accordingly sent to the husband who sent it on to Judith Klyne on 14 May 2019. The draft agreement was designed to provide financial disclosure as set out below.

In the Interpretation section at the start of the agreement there are the following relevant definitions (my emphasis):

Attached to the agreement were five Appendices. Appendix A & B relate respectively to the separate assets of the wife (A) and the husband (B). Appendix C relates to joint assets. Appendices D & E relate to each parties’ liabilities.

All five of the appendices were blank in the draft sent to the husband on 14 May 2019. They simply state in red print “To insert details”.

There were two recitals on the face of the agreement which related to legal advice (I and J):

“I. Jenny and Simon have entered into the Agreement freely and voluntarily without undue influence, duress or coercion or without any promise or representation other than as set out in this Agreement, and all the terms herein represent the entirety of the Agreement between them. They are each entering into this Agreement free from pressure of any kind and having given full consideration with the help of their independent legal advisers to the ramifications of entering into this Agreement.

“J. Simon has received independent legal advice from (insert name and address or Lawyer), OR has made it clear to Jenny and hereby acknowledges, that he does not wish, or need to, receive independent legal advice; he acknowledges that he is intelligent and (insert profession) and fully understands the terms and implications of this Agreement, prior to the execution of this Agreement and is fully aware of the rights and claims that he is surrendering pursuant to this Agreement.”

Recitals R. and S. read as follows:

“Full Disclosure

R. Jenny and Simon have fully and frankly disclosed to each other their financial resources and liabilities which are set out in summary form in Appendices A,B,C,D and E to this Agreement.

S. Both Jenny and Simon recognise that the disclosure provided to date each to the other is not completely detailed but each acknowledges that such disclosure has been substantially complete in all material respects and on this assumption they each voluntarily and expressly accept the disclosure provided by the other as being sufficient to enter into this Agreement, and they both waive rights to further disclosure or enquiry. In particular Jenny and Simon have not sought to have and do not wish to have any further valuations of the various assets contained in Appendices A and B.”

(my emphasis).

Paragraph 32 of the agreement provided for any dispute arising out of the agreement in the first instance to be “referred to a family law trained financial mediator”.

At the end of the agreement, in addition to the space for the signatures of the parties, were Lawyer’s Certificates to be signed by each party’s legal advisers in order to confirm that their respective client had entered into the agreement freely and with the benefit of independent legal advice. The agreement had attached to it a lawyer’s certificate signed on behalf of the wife. There was no equivalent certificate for the husband.

The following day, 15 May 2019, the husband had a telephone meeting with a solicitor Judith Klyne to whom he had been referred by Sam Hall. The Court has the benefit of a copy of Ms Klyne’s annotated copy of the agreement as well as a copy of the full attendance note made of that meeting, the husband having waived legal privilege. The wife, as she is entitled to do, has not waived her privilege. The Court, other than knowing that her father was present at some or all the wife’s meetings with her legal advisors, has only the email trail and her statement to assist as to why she failed to disclose a significant portion of her assets.

The attendance note records Ms Klyne’s reservations about the document as drafted. She emphasised that she could only give limited advice without the appendices having been completed. An important aspect, she emphasised, was that the wife’s separate property was to be ring-fenced notwithstanding any contributions made by the husband. The note says:

“… assets are heavily weighted in her favour, concern is restrictions on you. Contributions will not be taken into account, need to be comfortable with that. [the husband] saying yes comfortable. Her father given money for current house, not expecting anything back. JK saying just be careful of putting large sums in her sole property, maybe discuss joint names”.

A theme of the meeting was Ms Klyne’s concern that it had to be made clear that the husband’s needs would be met and she noted that she had said that the husband must be “happy with worst case scenario”. Ms Klyne told the husband that she would not sign the Lawyer’s Certificate as matters stood and that what she had done was simply to give a high level review without having seen the appendices. She explained that she would expect to be involved with negotiations with the lawyers, to see the figures and reach agreement with the other side. She told the husband that he could still sign the agreement without legal advice. The husband told Ms Klyne that he was comfortable with the terms of the agreement and that he and the wife were very open and could discuss things and that they were both sensible people. The husband said that if something did happen they could be “agreeable” and that he hoped that they would build joint assets going forward.

On 21 May 2019, following his meeting with Ms Klyne, the husband sent an email to James Berry Law. In it he sought clarifications about contributions made by him after the initial purchase of assets by the wife. The email goes on to say that other than that, “the document as drafted is fine. However without sight of the appendices, the lawyer representative page will not be signed and should be removed. I have been informed that this should not have any bearing on the document”.

On 9 June 2019, James Berry Law responded to that email saying that they understood that the husband was seeking independent legal advice and asking for details. They said any amendments made in the light of his (the husband’s) question about contributions would need to be agreed. So far as joint assets and the family home were concerned the email said that he should discuss it with the wife and seek legal advice. The email concluded “I am seeking my client’s instructions to complete the appendices and will revert to you as to when the appendices can be mutually exchanged.”

Two days later, on 11 June 2019, at 6.32 pm, the wife sent an email (‘the copy and paste email’) to the husband with the intention that he should copy and paste its contents into an email which he would send to her solicitors. It was drafted in the following terms:

“Good evening

Thank you for your email.

I did seek legal advise [sic] but the lawyer stated she could not sign the required documentation without having seen the appendices.

I am satisfied now with the agreement as it stands without any amendments required from my side.

As I see it there are two options -

1)

The Appendices are omitted completely and my lawyer will sign to say she has over seen on my behalf

2)

The Appendices are inserted and I will sign and note that I did not wish for legal advise [sic]

Option 1 is preferable as this is truthful, however if it is legally required for the Appendices to be inserted then I shall agree to go with Option 2.

Please note that Jenny and I will be traveling now and return to Dubai on the 19th June when we will be keen to get this agreement signed and the matter closed.

Kind regards,

Simon”

Just nine minutes later, the husband sent an email to James Berry Law ‘copy and pasting’ the entire email as just received from the wife. It was copied even down to the typographical errors contained in her draft and replicated above.

James Berry Law replied to this email the following morning, 12 June 2019, saying that in order for the Court not to question the validity of the agreement, a Law Commission report recommended that at the time of making the agreement both parties receive disclosure about the other’s finances. The wife’s lawyer said that: “in instances where there has been failure to disclose, the validity of the Agreement has been questioned by the Court” He went on: “In the light of the above, I will be advising my client to make the disclosure to you and subject to her instructions the disclosure appendix can be mutually exchanged.”

James Berry Law therefore had themselves, acting on behalf of the wife, proceeded on the basis of Option 2 and rejected Option 1 which had been suggested by the wife to be the preferred route in the copy and paste email she had sent to the husband. Option 1 would have meant that there would have been no disclosure at all, contrary to the structure of the agreement as drafted.

For the sake of completeness, it should be noted that the Law Commission report Matrimonial Property, Needs and Agreements (Law Com No. 343) February 2014 to which James Berry Law referred, recommended that both parties should receive disclosure of material information about the other party’s financial situation and that it should not be possible for that requirement to be waived. In the Law Commission’s subsequent Financial Remedies Scoping Report, published 18 December 2024, after the Supreme Court’s decision in Radmacher, the Law Commission rehearsed the recommendations made in their earlier report that:

“7.13

We also recommended that QNAs [sic]be invalid if made less than 28 days in advance of the marriage or civil partnership. Both parties should receive disclosure of material information about the other party’s financial situation, and it should not be possible for this requirement to be waived. Both parties should also at the time the agreement is made receive legal advice about the nature of the agreement and its effect on their rights, which cannot be provided by the same lawyer.”

On 17 June 2019 the husband provided the disclosure necessary for those Appendices relevant to him and confirmed (in accordance with “Option 2”) that he would not be showing the appendices to his lawyer with the result that he would be the only signatory on his side.

On 18 June 2019 an email was sent to the husband with the Final Agreement “with Assets updated” attached.

It will be recollected that Appendix A was the critical Appendix so far as the wife’s assets were concerned, the heading being “Current Separate Property/ Assets of Jenny Alzena Helliwell”. As noted at para. [18] above, Current Separate Property/Asset is defined as: “any and all property of any nature owned directly or indirectly by a party to this Agreement on the date of its execution, including without limitation… the property/Assets …in Appendix A.”.

In summary therefore the wife expressly represented under the agreement that she had “fully and frankly” (Recital R) disclosed in Appendix A to the agreement “any and all property of any nature owned directly or indirectly by [her] on the date of its execution,”with each party acknowledging that the disclosure “is not completely detailed but each acknowledges that such disclosure has been substantially complete in all material respects” (Recital S).

The following assets were disclosed by the wife in Appendix A:

“1.

Various Properties Dubai: USD 16 million

2.

Various Properties France: USD 2 million

3.

Bank Accounts – UAE: USD 250,000

4.

Bank Accounts - Singapore: USD 5 million

Total Assets: USD 23,250,000. [£18,206,735]”

The husband declared £1m of assets at Appendix B, and Appendix C listed various equities held in joint names to a value of £700,000. No liabilities appear at Appendices D or E.

The former matrimonial home is legitimately not included in Appendix A as at the time of the agreement it was held in the father’s name and was not transferred to the wife until June 2021. The wife however failed to include £47,878,800 of assets owned by her in Appendix A. The assets owned but not disclosed by the wife were agreed at 2024 values by Counsel to be as follows:

There is a minor dispute between the parties as to the value of the JA Investments, but it is agreed that the difference between them would not affect the outcome. What is significant is that, taking the wife’s assets at £66m, the wife’s disclosed only 27% of her assets notwithstanding that her own lawyer had himself recognised in his email to the husband on 12 June 2019 that where there is failure to disclose, the validity of the agreement could be questioned by the Court.

In her witness statement the wife gave the following explanation for her failure to disclose the majority of her assets:

“I did not consider it appropriate to set out as part of an appendix to our agreement, shares which my father had placed in my name as a form of inheritance planning. Although he had placed assets in my name, and legally they were ‘mine’, I believed (and continue to believe) that in reality these remained my father’s assets. I do not consider that I am able to access these until after his death, whatever the legal position may be. My father is an intensely private person and I did not want the document to contain details of what I believed to be his business affairs, particularly as I knew it was a document which Simon would show to third parties, such as his family and particularly his mother, whom he trusted implicitly and had been significantly involved in his divorce from his first wife. It is correct, as Simon says, that my father is concerned about tax. Simon knew the approach I was taking and understood the reasons why. This is something we discussed.

Appendix A does not include reference to my 50% interest in my mother’s house in Wimbledon. I regard it as her asset and do not believe I can realise my interest during her lifetime (whatever the legal position may be). I was concerned about tax, this being the reason my mother had put 50% of the property in my name, and I did not want to record my interest in writing. Simon was aware that I had an interest in the property as I discussed it with him.”

The wife and her solicitor signed the ‘Lawyer’s Certificate’ on 26 June 2019. The certification included a paragraph saying that, prior to the wife signing the agreement, her lawyer had advised her ‘with regard to it, on the terms included in it, and on their meaning and effect’. One can safely assume given the terms of the certification, that the wife was well aware of her obligations under the agreement and as recorded on the front page under the rubric ‘Important Notice’, that the agreement was not only intended to create legal relations between the parties, but that it was intended to: “confirm their separate property/assets and to be determinative of the division of their property/assets in the event of divorce” (my emphasis).

On 27 June 2019, the wife collected the agreement, which was not then produced for the husband to sign until the 12 July 2019, the day of their wedding in the Seychelles.

Following the parties’ separation, the wife issued her Form A on 16 September 2022. The husband’s solicitors responded by proposing that the agreement should be set aside for material non-disclosure and that the parties should instead, focus on the husband’s needs. The husband’s solicitors expressed their concern about the incorrect statement of the wife’s financial position contained in Appendix A and highlighted that material non-disclosure vitiates a pre-nuptial agreement. The wife declined to adopt this approach and instead, on 9 November 2022, issued a Notice to Show Cause as to why the agreement should not be upheld.