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

The judgment is reported at [2024] EWHC 740 (Fam). The judge gave a detailed summary of the background to the parties’ relationship, its subsequent breakdown, and the history of the proceedings. He observed at the outset that the case was, in his view, a ‘paradigm’ for how not to conduct litigation following the breakdown of a short, childless marriage. He described how difficult each of the parties had found giving evidence and said that the ‘misery affecting both the husband and the wife was palpable’.

He found the wife to be honest and reliable in her evidence, the husband he found to have been ‘less than honest in relation to at least part of his evidence’. The judge also commented that so far as the dispute of fact as to the date of the start of the parties’ cohabitation, he found it unnecessary to decide if the husband had persuaded himself that the date he gave was the truth, or whether he was lying deliberately.

The judge recorded that the wife deposed to assets of £61.5m with an income of £600,000 pa net which the husband said should be £74m with an income closer to £1m a year. The judge did not feel it necessary to decide who was right saying:

“12.

What difference, I ask rhetorically, does it make after a short childless marriage whether the economically stronger party is worth £50 million, £60 million or £70 million, when none of the capital forms any part of the marital acquest, but was gifted to that person by a parent? I ask that question absent of prenuptial agreement, although there is one present here which just adds to the overall risk assessment. For the avoidance of doubt, this is not to condone dishonest or careless disclosure by the wealthy party.”

The judge however did not in addition record or take into consideration, that the issue was not in relation to quantum as between £61m or £74m, but related to the wife’s failure to disclose all but £18m of her assets of between, now, £61m and £74m.

The wife’s position before the judge was that this was a short childless marriage with a ‘drop hands’ pre-nuptial agreement entered into freely by the husband with legal advice in circumstances where he understood the consequences. The agreement she argued should be given determinative weight. Although it was right that there had been some non-disclosure by the wife, the husband was well aware that he was marrying an extremely wealthy woman and so the non-disclosure did not undermine the validity of the agreement.

In response, the husband contended that he should not be held to the terms of the agreement. Not only had there been material non-disclosure, but he said that he had been persuaded to enter into the agreement as a sop to the father, but that the wife had assured him that he would always be provided for as he had ‘married a Helliwell’. The judge accepted at para. [82] that the agreement was something that the father had insisted on.

The judge found the husband to be a clever man familiar with reading important documents and that he was not the sort of person who would fail to understand the significance of what he was being told or what he was signing.

The judge referred to the agreement itself, highlighting those recitals in which the parties expressed their desire to have an agreement (D); that there was disparity in the assets in the wife’s favour (E); that it was to be a drop hands agreement (F); that it was to be binding (G); that they entered into it voluntarily without undue influence (I); and that they had sufficient time for independent legal advice and reflection (J).

Later in the judgment the judge set out the operative clause found at clause 24 of the agreement which constitutes the central ‘drop hands’ provision:

“24.

In the event of the divorce of [the wife] and [the husband] neither of them will make any financial claim of any kind arising out of their marriage, or otherwise, against the other, including but not limited to, claims for a lump sum, property adjustment orders, periodical payments, maintenance pending suit and pension sharing orders save that this provision shall not apply to financial claims for the benefit of any child born to them both.”

Regarding this provision, the judge observed at para. [113] that it would be ‘hard to think of’ a more comprehensive clause dismissing future financial claims’, or one which was written in ‘more straightforward plain English’.

The judge was somewhat scathing of the husband’s case saying that:

“…the idea that the husband in some way signed this with his fingers crossed behind his back relying on the representation, ‘You will be all right because you have married a Helliwell’ is risible, and I reject that piece of evidence of his completely. Even if it was said, it was plainly overridden by this agreement which is absolutely clear in its terms.”

In setting out his approach to the determination of whether the agreement should be binding on the husband, the judge referred to Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (‘Gestmin’) and to Lord Leggatt’s well known judgment in which he said facts should be based on ‘factual findings on inferences drawn from the documentary evidence and known or probable facts’. In reliance upon that approach, the judge said:

“83…It is, in my judgement, essential to see what the husband read, was advised about, did and signed, rather than attach much evidential weight to an unrecorded conversation and a conversation which the wife denies ever happened. I hark back here to the passage quoted above in the judgment of Leggatt J as he then was. I am going to do what was suggested in that case and what is obviously right, which is to look at the documentary evidence rather than pay much attention to after the event claims, particularly as they come from somebody who I have already found to be less than honest in relation to at least part of his evidence.”

The judge turned at para. [101] to the issue of disclosure which he regarded as the ‘strongest part of the objection’ to be ‘launched against the agreement and its validity’.

The only part of the agreement quoted by the judge in relation to disclosure was the recital at (R) which said that:

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

The judge did not refer to recital (S), or the definition of ‘Current Separate Property/Assets’, or Appendix A and nowhere did he set out the extent of the non-disclosure by reference to the disparity between the assets disclosed by the wife as compared with her actual assets.

The judge noted that Ms Bangay KC for the husband had referred to the fact that the wife ‘openly admitted that she deliberately grossly underestimated her wealth by excluding a business interest and some property assets’.

In response to this submission, the judge said that:

“102.

My recharacterization of that statement would be that the wife did not know the full value of her assets and did not know the assets even that she owned or what their value was. She did not want to ask her father and risk incurring his wrath for the reasons that I set out above. But I agree that the wife did not give full disclosure. I have found that she was very reluctant to ask her father about the detail of her assets and I have found that she was doing her best to tell the truth about her worth.

103.

It is important to record that the prenuptial agreement incorporates disclosure in summary form in Appendices A and B. It records that disclosure was substantially complete. It was obvious to the husband that the wife was extremely wealthy and whilst understanding that full and frank disclosure is always the gold standard to aim for in a prenuptial agreement, if, as here, there is an understanding that one party is exceptionally wealthy, you cannot, as the economically weaker party, simply get out of the consequences of the prenuptial agreement because the number that was provided in terms of the wealth was a number that was lower than the truth or lower than it should have been. The judge will look at the effect in each individual case.

104.

It is clear that the husband was expressly advised by Hall Brown to seek further disclosure and he declined to do so. The husband says that he was put under unreasonable pressure by the wife. I reject this submission.”

The judge’s judgment contains no further analysis of the issue of non-disclosure and did not address the husband’s case as summarised in written closing submissions where it was said on his behalf that the wife had:‘[failed] to provide disclosure and when provided it was dishonest’and that, ‘Such deliberate concealment - £18m - £70m - is material.’ Further, the judge did not address the husband’s submission that the approach to set aside for non-disclosure found in the cases any of a consent order, an Edgar agreement or a Xhydias order, should apply equally to deliberate non-disclosure in pre-nuptial agreements.

With respect to the judge, on the facts of this case and the terms of the agreement signed, it was not just that disclosure is some generalised ‘gold standard’. Here the parties had signed a binding agreement expressly stating that the wife had “fully and frankly” disclosed ‘any and all property of any nature owned directly or indirectly [by her] including, without limitation … the property/Assets … in Appendix A’. This is not a case where the ‘number’ was simply ‘lower than the truth or lower than it should have been’; it was a case where 73% of the assets were deliberately not disclosed because the wife and her father were ‘concerned about tax’.

Despite his reference on two occasions to Gestmin, the judge referred only to the attendance note of Ms Klyne. There is no reference or analysis of the chronology of negotiations or to the email trail between the wife’s solicitors and the husband: in particular there is no reference to the wife’s behaviour or motivation in sending him the copy and paste email whereby the husband would agree either to no disclosure, or alternatively, to his seeing her assets on the basis that his lawyer would not see them. Further, the judge made no reference to the fact that the wife’s lawyer was clearly conscious of the need to give proper and full disclosure in Appendix A.

The judge was of the view that, despite the non-disclosure, the husband was well aware that the wife was extremely wealthy, and that this, he suggested, prevented the husband from relying on non-disclosure of particular assets to vitiate the agreement.

It was absent consideration of this important documentary evidence, that the judge considered only the early legal advice which had been given to the husband by Ms Klyne prior to the intervention of the wife. Having cited the key passages of Ms Klyne’s attendance note, including an exchange where the husband was advised that the solicitor would not sign the proposed “Lawyer’s Certificate” in the agreement without such full disclosure, the judge found that the husband had received ‘good, sensible and correct’ advice. He said at [121]:

“It is hard to think of anything that could be clearer in terms of the advice that the husband received. He had the opportunity, did he not, of refusing to sign the agreement. It might have ended the relationship, or they might have stayed living together and not married, but he made that choice. There is no point in having these agreements, and I would be riding roughshod over the decision of the Supreme Court in Granatino v Radmacher if I did not give regard to this prenuptial agreement.”