Immigration and Prenuptial Agreements
As top London immigration solicitors, the immigration law team at OTS Solicitors ensures that many migrants and their families are able to enter the UK and OTS Solicitors then go on to help migrants and their families secure settled status or indefinite leave to remain in the UK or British citizenship.
When a migrant and their spouse to come to the UK, for work or to join family, the prenup agreement or marital property regime document that they signed in the country where they married or in their country of origin is often given very little thought as all the focus and energy is taken up with settling in the UK .
However, the case of Versteegh v Versteegh [2018] EWCA Civ 1050 is a reminder of just how important it is on arrival in the UK to review important paperwork such as your Will, prenuptial agreement, postnuptial agreement or cohabitation agreement. If you do not do so then you may end up with legal complications and incurring additional legal costs.
How can OTS Solicitors help?
OTS Solicitors are specialist immigration and family law solicitors. Our clients come from across the world and not only require expert immigration advice but proactive family law advice to review existing prenuptial agreements, postnuptial agreements and cohabitation agreements or prepare new or mirror agreements.
It is often not until you take legal advice that you realise that a family law agreement needs preparing or revising. Call the family law team at OTS Solicitors on 0203 959 9123 to see how a member of the family law team can help you.
Prenuptial agreements and marital property regime documents
If you signed a prenuptial agreement or marital property regime document in the country of your origin or the country where you got married it is important to dust off the document when you arrive in the UK to check that the document is ‘fit for purpose’.
The best London divorce solicitors advise that some couples do not need to do anything about their prenuptial agreement or marital property regime document. That may be because they knew, when they signed the paperwork that they were planning to move to England to live and therefore provided for that step. For example, the couple could have taken advice from English family solicitors on:
- The law on prenuptial agreements and their enforceability in the UK; and
- Adjusted the content of their prenuptial agreement in their country of origin to ensure it carries weight in England;
- Stated in the prenuptial agreement which country should hear the divorce proceedings if there is a choice of jurisdiction or more than one country in which divorce proceedings could be started;
- The signing of a mirror prenuptial agreement in England to mirror the contents of the non-UK prenuptial agreement or marital property regime document.
Some may question if this extra hassle and work is necessary. After all a prenuptial agreement is a bit like an insurance policy, something you take out but hope that you never have to place any reliance on. Top London divorce solicitors say that prenuptial agreements are just like insurance policies , the more work you put in finding the right type of policy and level of cover, the more you eventually you save in time and money.
Why does divorce court jurisdiction matter with a prenuptial agreement?
You may think that a divorce is a divorce in whatever country you get divorced in but you could not be more wrong. The best London divorce solicitors will tell you that the London divorce courts are reputed to be very generous to financially weaker spouses than many other countries. What is more, the London and English divorce courts do not:
- Recognise prenuptial agreements as legally binding. Depending on the circumstances in which the prenuptial agreement was prepared and its contents, the document may be followed by an English divorce court when ordering a financial settlement. Alternatively, the prenuptial agreement may carry significant weight and limit the financial orders that might otherwise have been made;
- Use a strict formula to divide marital assets on divorce. Instead, the divorce court has a wide discretion and can divide marital and even in some cases non-marital wealth based on needs and other factors.
That is why, according to top London divorce solicitors, it pays to take the time to consider jurisdiction and choice of country for any subsequent divorce proceedings as well as making sure that the prenuptial agreement complies with the best practice standards for prenuptial agreements recognised by the London and English divorce courts.
The case of Mr and Mrs Versteegh and the Swedish prenuptial agreement
This English court of appeal decision is a good example of why those setting in the UK should review their important paperwork, including prenuptial agreements, on arrival in the UK or once granted settled status, indefinite leave to remain or British citizenship.
The husband and wife were both Swedish. They married in Sweden. They signed a prenuptial agreement in Sweden in accordance with Swedish law. The husband and wife moved to England and years later decided to get divorced. The divorce and financial proceedings took place in England.
In Sweden, prenuptial agreements are binding if they are executed properly. In England, a prenuptial agreement will carry weight with the divorce court, especially if safeguards are met such as:
- The agreement was signed at least a month before the wedding;
- There was financial disclosure about the wealth of the engaged couple prior to the agreement being signed;
- The couple both took independent legal advice on the contents of the prenuptial agreement;
- There was no coercion , in other words the prenuptial agreement was signed willingly;
- The prenuptial agreement meets needs.
In the case of Mrs Versteegh she argued that the Swedish prenuptial agreement should not carry weight with the English divorce court, as she did not take legal advice on the agreement, misunderstood the contents of the agreement and the prenuptial agreement was signed only one day before the wedding.
The court made a financial court order, giving some weight to the prenuptial agreement. The wife appealed as she thought the English court should have completely ignored the existence of the Swedish prenuptial agreement as when she signed it she did not realise about the English divorce court discretion to make financial settlement awards. Her appeal to the court of appeal was dismissed.
Although the wife's appeal was dismissed by the time of the appeal, the husband and wife had spent about £4 million in legal fees. Whilst those legal costs might not have been entirely avoided, the best London divorce solicitors will speculate whether the costs and the appeal case could have been avoided if:
- The husband and wife had signed a mirror agreement in England at the time of signing the Swedish prenuptial agreement as the move to England was contemplated by them;
- The husband and wife had reviewed their Swedish prenuptial agreement and signed a postnuptial agreement in England that met the English court expectations of independent legal advice, financial disclosure etc.
The top London divorce solicitors recommend that anyone who is coming to the UK to settle takes family law advice on any existing prenuptial agreement or marital property regime document and, if necessary, reviews it with the help of London family law solicitors.
How can OTS Solicitors help?
OTS Solicitors are specialist immigration and family law solicitors. Our global clients require expert immigration advice and proactive family law advice on the need to draw up or review existing prenuptial agreements, postnuptial agreements or cohabitation agreements upon settlement in the UK.
It is often not until you take expert legal advice that you realise that a family law agreement needs preparing or revising. Call the family law team at OTS Solicitors on 0203 959 9123 to see how a member of the family law team can help you.