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

Ms Bangay submits that the wife was guilty of deliberate misrepresentation in her disclosure and that the husband had been put under undue pressure. There was, she submitted, no factual context contained in the judgment. Had there been one it would have clearly demonstrated the wife’s dominant position. The judge wrongly analysed the circumstances surrounding the making of the agreement by reference only to the attendance note and failed to look at the emails. Had he done so she said, it would have been obvious that the attendance note revealed only an incomplete picture at best. The judge had been in error to reject the wife’s admitted failure to disclose as a reason to upset the agreement.

Ms Bangay submitted that it is clear from the email of 12 June 2019 from the wife’s solicitor to the husband that she was fully aware of the consequences of non-disclosure. Notwithstanding that being the case, she had deliberately only disclosed those assets which the husband knew about. It was never suggested, Ms Bangay said, that she was afraid of asking her father what her assets were and in any event her father was at the meetings with her lawyers. The wife had carriage of the document, the original draft was prepared by her lawyers, they had every opportunity to amend the warrant to saying that they were not disclosing business assets given to her by her father, but they did not do so; instead, she signed the agreement and failed to disclose over 70% of her assets.

Ms Bangay submits that the judge had been wrong at para. [104] of the judgment to say that “it is clear that the husband was expressly advised by Hall Brown to seek further disclosure and he declined to do so”. Had the judge followed the email trail and analysed the events as they unfolded he would have seen that that was not a fair representation of the husband’s position.

Ms Bangay did not discard her arguments with regard to the wife’s failure to mediate or that a letter sent on behalf of the wife by her Dubai solicitors threatening a claim for maintenance in themselves undermined the agreement but rather, rightly in my view, she focused on the wife’s non-disclosure and alleged that undue pressure had been put on the husband.

Even if the agreement were upheld, Ms Bangay said, the needs analysis concluded by the judge was flawed. The judge failed to consider those needs against the section 25 MCA factors, in particular there was no consideration of the quality and value of the former matrimonial home. It was in this respect that she factored in her discrimination argument submitting that, had the judge been considering a wife’s needs at the end of a six year relationship with a very wealthy man, it was improbable that the court would have expected her to have been back on her own two feet after two years in a rented property, particularly when she had given up her first career to work for the family company and had had a period of significant mental ill health following the breakdown of the marriage.

Lord Faulks on behalf of the wife said that this was a case where the parties had chosen autonomy. There are public policy factors at play and if this Court interferes with the agreement, Radmacher, he said, “would not have achieved much”. So far as the non-disclosure was concerned, whether the disclosure was sufficient goes to the materiality point in Radmacher. The husband knew the wife was rich, and it was a drop hands agreement. Whilst full disclosure would have been, he said, the “gold standard”, the disclosure made was sufficient to make it an agreement entered into freely. The husband was indifferent to the particulars of the wife’s wealth and he was content for there to be a drop hands agreement. When the issue of materiality was tested by Moylan LJ, Lord Faulks said that the non-disclosure may have been regrettable, but that it did not make any difference. The husband, he said, was an intelligent well-educated man who knew his wife was rich and had taken advice before agreeing to a drop hands agreement. The non-disclosure was not material notwithstanding that it would have been desirable for it to have been made.

The main focus of Lord Faulks’s submissions substantially related to the conventional arguments (although no less valid for that) in relation to the court’s reluctance to interfere on an appeal (Piglowska v Piglowski [1999] UKHL 27; [1999] 3 All ER 632), the dangers of island hopping (Fage UK Ltd v Chobani UK Ltd [ [2014] EWCA Civ 5), and that where the evaluation includes findings as to credit, it is particularly inappropriate for the court to go against the judge’s findings.

The needs assessment he said, was generous and there had been no need for the judge to have made any award at all. It is not, he argued, a matter of gender discrimination. Whatever frailties the husband may have had, he submitted, that does not mean that the judge should have ignored all the surrounding evidence and the intent of the agreement.