Marital agreements—sharing, needs and foreign property regimes

Marital agreements—sharing, needs and foreign property regimes

Family analysis: Jennifer Perrins, barrister at 1KBW, considers the case of Versteegh v Versteegh on the importance of legal advice in relation to a pre-marital agreement, whether a party has ‘a full appreciation of the implications’ and the appropriateness of making a ‘Wells order’.

What are the practical implications of this case?

Following Versteegh v Versteegh [2018] EWCA Civ 1050, [2018] All ER (D) 64 (May), in respect of marital agreements, practitioners will now need to approach the decision of Mostyn J in B v S (Financial Remedy: Marital Property) [2012] EWHC 265 (Fam), [2012] All ER (D) 189 (Mar), with caution, as both King LJ and Lewison LJ held that Mostyn J had ‘set the bar too high’ with respect to the need for specific legal advice about the effect of a pre-marital agreement (PMA) in other countries.

In a case concerning the election of a foreign property regime (as opposed to a detailed nuptial contract), practitioners will need to focus very carefully on pleading every relevant matter to demonstrate that there are specific reasons why the PMA is unfair/whether there are other additional factors which ‘detract from the weight to be accorded to the agreement’—the mere fact that, for example, a party signed just a European country’s standard election of regime without advice will not be enough. However, it may be that the decision in Versteegh is to an extent confined on its facts—as the judge made extremely strong factual findings against the wife that she had deliberately lied about her level of understanding, and that she had been fully aware of the implications of the PMA throughout the marriage. In many cases, such a clear-cut finding of fact may not be possible. There is also, of course, always the ‘safety net’ of needs—and that remains a rather elastic concept, even if the interpretation of needs and/or fairness is impacted by the existence of a PMA.

With regard to sharing, the Court of Appeal made some notable

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