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Important clarification on the status of foreign pre-nuptial agreements and property regimes in English divorce cases

Posted: 14/05/2018

In Camilla Eva Carin Versteegh v Gerard Mikael Versteegh (2018), the Court of Appeal has provided important clarification for foreign couples living in England about the status of pre-nuptial agreements and matrimonial property regimes entered into in their home countries.

It refused an attempt by the wife to challenge the validity of a Swedish pre-nuptial agreement because she had not had legal advice before signing it, and had not understood the implications of the agreement in the event she moved to, and later divorced in, England.

The Court of Appeal followed the precedent established by the Supreme Court in the landmark case of Radmacher v Granatino, by finding that whilst it is ‘desirable’ for a wife to take legal advice in such circumstances, it is not ‘essential’. Giving the lead judgment, Lady Justice King said:

“The PMA was, in effect, a part of their marriage, metaphorically taken with them where ever they went, reflecting an autonomous decision made by them as to how they wished to govern their affairs. People move from country to country for many reasons and sometimes find themselves moving abroad never having expected even to leave their home town. It cannot be right that a couple have to take legal advice [ … ] ‘just in case’ in ten years’ time they move to live in the UK or, that they have to in some way ‘refresh’ their PMA by the wife receiving legal advice prior to relocating.

In my judgment, when an English court is presented with a PMA such as the present one; signed in a country where they are commonplace, simply drafted and generally signed without legal advice or indeed disclosure, it cannot be right to add a gloss to Radmacher to the effect that such a spouse will be regarded as having lacked the necessary appreciation of the consequence absent legal advice to the effect that some of the countries, in which they may choose to live during their married life, may operate a discretionary system.”

Conflicting judgements in the High Court have meant that there has long been confusion as to whether foreign pre-nuptial agreements and matrimonial property regimes will be upheld by the English courts. Following Versteegh, the position is a good deal clearer.

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