“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.”
“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.”
“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”
“in instances where there has been failure to disclose, the validity of the Agreement has been questioned by the Court”
“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.”
“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.”
“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 ]”
“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.”
“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.”
“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.”
“…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.”
“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.”
“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.”
“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.”
‘[failed] to provide disclosure and when provided it was dishonest’and that, ‘Such deliberate concealment -£18m -£70m - is material.’
“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.”
“64….I can well understand that the wife did not want to ask her father for details of her financial resources if it meant enquiring into something that he regarded as deeply private.”
“64. W’s disclosure at Appendix A did not include business assets / shares in her name but controlled by her father; she explains why in her statement and makes clear that she continues to consider that in reality these are her father’s assets. Prior to these proceedings W had limited knowledge about these assets.”
‘very happy to make a correction to the transcript when it comes through, but I am confident that it does not make any difference to my decision’
“71. The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it. 72. The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way. 73. If the terms of the agreement are unfair from the start, this will reduce its weight, although this question will be subsumed in practice in the question of whether the agreement operates unfairly having regard to the circumstances prevailing at the time of the breakdown of the marriage.”
“the standard vitiating factors”
“22.iv) The first question will be whether any of the standard vitiating factors, duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it (para 71). The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. (Para 72).”
“75. The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
“[75] Therefore, where the court is dealing with an application to set aside a consent order, (or, as here, an application that a draft consent order should be rejected) on the ground of fraudulent non-disclosure, the court should not entertain any argument that the victim of the non-disclosure could, with due diligence, have discovered the material facts, and should apply stringently the principle that the consent order, and the underlying agreement, must be set aside unless the non-discloser can show by clear and cogent evidence that a reasonable person in the position of the victim of the deception would, if she had full knowledge of the facts, have reached the same agreement.”