Versteegh v Versteegh

A nuptial agreement may properly modify the sharing principle where it was freely made with full appreciation of its implications and it remains fair to hold the parties to it. Independent legal advice is desirable but is not an indispensable condition. The court must assess whether any missing advice or information was material to the decision to enter the agreement.

There is no mandatory mathematical method for separating matrimonial from non-matrimonial property. A court may give non-matrimonial contributions appropriate weight within its overall discretion. Where a business cannot reliably be valued and should not be sold, an in-specie division of the risk-bearing asset may be fair, despite its departure from a complete clean break.

The wife appealed from Sir Peter Singer’s financial remedies order following a long marriage. The husband’s business interests were held through a trust and corporate structure. The judge awarded the wife approximately half of the non-business assets, worth £51.4 million, and a 23.41% ordinary shareholding in the principal business holding company.

The wife challenged the weight given to a Swedish pre-marital agreement, the treatment of the husband’s non-matrimonial property, the refusal to value the business and its future liquidity, and the transfer of ordinary shares instead of a cash award. The central issue was whether those conclusions, individually or cumulatively, fell outside the judge’s broad discretion.

1. Appeal dismissed. King LJ, with whom Holroyde and Lewison LJJ agreed, held that the judge’s order was within the permissible range of his discretion.

2. The judge was entitled to give substantial weight to the Swedish pre-marital agreement under Radmacher v Granatino, [2011] 1 AC 534. Legal advice was desirable but not essential. The decisive question was whether the wife had full appreciation of the agreement’s implications and intended it to regulate the consequences of divorce. On the unchallenged findings, she did. The requirement proposed in B v S, that parties generally need advice about a possible discretionary jurisdiction, set the bar too high.

3. An effective agreement did not have to be enforced in its entirety. It could fairly modify sharing while preserving provision for needs. The judge was therefore entitled to make an award exceeding the wife’s needs without treating the case as requiring an equal division of all assets.

4. The judge was not required to identify a precise percentage allowance for non-matrimonial property. Following Miller v Miller; McFarlane v McFarlane, [2006] UKHL 24, and Hart v Hart, [2017] EWCA 1306, he could give that contribution weight with the degree of generality appropriate to the case. The uncertainty in valuing the principal business made that approach appropriate.

5. The extensive expert evidence did not permit a reliable valuation of the development projects or a probability-based assessment of liquidity. The judge was entitled to reject even a conservative figure rather than make a speculative finding. A court need not fix a value merely because computation ordinarily precedes distribution.

6. Section 25A of the Matrimonial Causes Act 1973 imposed a duty to consider a clean break; it did not prohibit a shareholding in a company connected with the other spouse. Wells sharing was unattractive and required caution, particularly where there was no clear exit route. But it was permissible where the asset could not be valued, could not be sold, and the wife already had liquid capital substantially exceeding her needs. The ordinary-share order was therefore not erroneous.

• Court of Appeal (Civil Division) — dismissed the wife’s appeal: [2018] EWCA Civ 1050.
• High Court of Justice, Family Division (Sir Peter Singer) — by an order dated 30 January 2017, awarded the wife approximately half of the non-business assets and a 23.41% ordinary shareholding in H Holdings.