England and Wales
Family Asset Protection: Divorce, Finance and the Media
Divorce can impact on a trust where proceedings involve either the settlor of the trust and/or the trust's beneficiaries. Where trusts have been created, they will often hold a significant proportion of a family's wealth and the financially weaker party in a divorce commenced in England and Wales will often go to considerable lengths to ensure that trust assets are brought into account in determining the financial award from the court. Trustees face difficult considerations in this highly complex area and adverse consequences if they respond inappropriately — in T v. T (Joinder of Third Parties)  1 2 FLR 357 Wilson J (as he then was) ordered that the trustees should pay the wife's costs since they had tried and failed to set aside the order joining them as parties.
1 . Divorce and trusts
Trusts have been a feature of common law jurisprudence for centuries and are fully recognised in England and Wales. The legal basis of trusts and the laws governing their operation are well established and understood. A trust is not, itself, a separate legal entity. It is, in essence, an arrangement whereby one person (the “settlor”) gives away the enjoyment of assets to a group of individuals (the “beneficiaries”, which will often include the settlor himself) while control of the assets and decisions on the administration and investment of those assets lies with others (the “trustees”) who are bound by fiduciary duties in their dealings with both the assets and the beneficiaries. The principal terms by which the trustees manage the assets and allocate benefits to the beneficiaries are set out in the trust deed. The deed is approved by the settlor and, in most cases, is supplemented by a letter of wishes or memorandum of guidance. These ancillary documents are less formal than the trust deed itself but will typically outline the settlor’s family’s philosophy and will offer the trustees guidance on the long-term strategy the settlor has in mind for the assets settled on trust. A letter of wishes will typically be expressed to say that it does not purport to have legal effect nor to bind the trustees.
There are a number of different approaches that might be taken by the England and Wales family courts in relation to trusts — it makes no difference whether those trusts are based in England and Wales or offshore.
The basic approaches are to:
- Treat the trust as a financial resource. The court can make an order against a spouse with trust interests personally, and it is left to the spouse to work out how the liability will be met. This is on the basis that the trust is regarded by the court as a resource of the spouse, which may include a finding that in effect the spouse is likely to have access to the funds in the trust.
- Vary the trust if the trust is an ante-nuptial or post-nuptial settlement, for example, by making a provision for a spouse who is not already a beneficiary or removing a trustee.
- Treat the trust as a “sham” and that, in reality, it is a nominee relationship between the settlor and trustee.
- Set aside the disposition creating the trust.
The leading trust and resource case in England and Wales is Charman v. Charman  EWCA Civ 1606, in which a 'likelihood test' in resource cases was first propounded. Wilson LJ at paragraph 13 stated that, "albeit with one small qualification, I agree with the suggestion of Butler-Sloss LJ in this court in Browne v Browne  1 FLR 291, that, in this context, the question is more appropriately expressed as whether the spouse has 'immediate access to the funds' of the trust than 'effective control' over it. The qualification relates to the word 'immediate'... the question in that case was whether [the wife's] access to [the trust funds] was immediate. In principle, however, in the light of section 25(2)(a) of the 1973 Act, the question is surely whether the trustee would be likely to advance the capital immediately or in the foreseeable future".
A court can only exercise its jurisdiction to vary a trust if that trust is found to be nuptial. If a trust is found to be nuptial the England and Wales court has broad powers to vary it to the extent required properly and fairly to dispose of a spouse’s financial claims. Variation tends to be a last resort and, typically, is only ordered if financial claims cannot be met with non-trust assets. In Ben Hashem v. Al Shayif  1 FLR 115, Moylan J (as he then was) stated: “ In addition, in the decision of Ben Hashem v. Ali Shayif… Munby J (as he then was), when summarising the matters which the court will take into account when dealing with applications for the variation of a settlement, included the following: “(iv)The settlement ought not to be interfered with further than is necessary to achieve that purpose, in other words to do justice between the parties; (v) Specifically, the court ought to be very slow to deprive innocent third parties of their rights under the settlement. If their interests are to be adversely affected then the court, looking at the wider picture, will normally seek to ensure that they receive some benefit which, even if not pecuniary, is approximately equivalent, so that they do not suffer substantial injury. As Sheldon J put it in the passage in Cartwright which I have already quoted: ‘if and in so far as [the variation] would affect the interests of the child, it should be permitted only if, after taking into account all the terms of the intended order, all monetary considerations and any other relevant factors, however intangible, it can be said, on the whole, to be for their benefit or, at least, not to their disadvantage.’””
The English family court is clearly under an obligation to consider the interests of beneficiaries when deciding whether, and if so how, to exercise its powers to vary settlements: this is consistent with the wider approach referred to by the Court of Appeal in Charman v. Charman (No. 4)  EWCA Civ 503 at paragraph 57: "it is essential for the court to bring to it a judicious mixture of worldly realism and of respect for the legal effects of trusts, the legal duties of trustees and, in the case of off-shore trusts, the jurisdiction of off-shore courts.”
Following the leading English House of Lords decision in Brooks v. Brooks  AC 375 a “nuptial settlement” is “one which makes some form of continuing provision for both OR either of the parties to a marriage, with or without provision for their children”. So a very broad, and often widely interpreted, definition. In Brooks the court treated a private pension as a nuptial settlement.
N v. N  EWHC 2908 (Fam) is an example of the innovative approach taken by the English Family Division in which a Bahamian law trust, which was not a nuptial settlement, had purchased the family home. Coleridge J said that his "task was to consider what the real substance of the arrangement was which governed this property". He held that the property itself was owned by a separate nuptial settlement capable of variation.
To determine whether a trust is a nuptial settlement, the first question is: is the trust “a settlement”. If the answer is “yes”, the second question is: is the settlement “nuptial” in character? This is a significantly fact- sensitive area. There is no real consistency in approach.
The financially weaker spouse will sometimes claim that the assets are, in reality, still owned by the settlor under a nominee or bare trust arrangement and the parties to the trust deed have not intended to create a trust but have intended, quite deliberately, to give a false impression to third parties and to the court. If the trust is a sham, then the application will be determined on the basis that the trust assets are still owned by the settlor. The trust will be invalid and ineffective. In practice, a finding of sham is rare.
Variation of settlement orders and set-aside orders are explored further below.
1.1. Financial disclosure
The financial disclosure obligations of a spouse in divorce proceedings filed in England and Wales relating to their trust interests on a worldwide basis are substantial and far-reaching. The spouse is required to provide full and frank disclosure in a detailed financial statement called a Form E (which must be signed with a statement of truth), together with full documentary evidence in support. It has a specific section dealing with trusts, requiring details to be provided of any “Trust Interests (include interests under a discretionary trust), stating your estimate of the value of the interest and when it is likely to become realisable. If you say it will never be realisable or has no value, give your reasons”.
That obligation is ongoing and requires the disclosure of all relevant documents whenever they come into the spouse’s possession. A standard questionnaire seeking initial further information and documents regarding trust interests will ask for:
- a copy of the trust deed and all supplemental documents, for example deeds of appointment and deeds of variation;
- copies of the trust accounts for the last three available years;
- documentary evidence in the form of a schedule prepared or authenticated by one of the trustees of all capital advanced and income paid to the spouse from the trust since its creation, together with any loans made;
- an estimate of the income, and if applicable, capital advances which the spouse can reasonably expect to receive from the trust in the foreseeable future; and
- a copy of all letters of wishes and other documents stating the settlor’s wishes.
Whether or not trustees are joined into divorce proceedings as a party, the England and Wales court will still expect trustees to co-operate and assist with the provision of disclosure whether the trust is an England and Wales trust or an offshore trust. The court is likely to join trustees into the proceedings in most cases where there are substantial assets held in trust.
In the event trustees are joined as a party to the proceedings, the court could order them to produce any documents which it considers necessary for disposing fairly of the attacking party’s financial claims, or if so doing would save costs. In theory, this could apply to any trust related documentation which is in the possession, custody or power of the trustees. In these types of cases, typically, trustees are required to produce copies of documents including (but not limited to), trust deeds, letters of wishes, trust accounts, details of trust assets, details of previous distributions, details of previous requests for distributions or loans, details of previous loans, and (less often) correspondence with settlors and beneficiaries.
It is likely to be appropriate for the trustee to produce a succinct financial disclosure statement explaining evolution of the trust, providing an overview of the assets owned by the trust and explaining the fact that trustees are likely to need (a) to obtain the views of other beneficiaries who are not parties to the divorce proceedings and (b) then obtain the blessing of the offshore court in which the trust is based before giving any detailed financial disclosure.
There is currently some debate as to whether trustees should be joined as parties to proceedings when there is an application to vary trusts. In the case of DR v. GR and others (financial remedy: variation of overseas trust)  EWHC 1196 (Fam), Mostyn J discharged the trustees as parties to the proceedings. He held that the joinder of trustees is not an essential pre-condition for the validity of a variation of settlement order as, once the trustees are served, the court can determine the matters in issue without the need for the trustees to be parties. His view was that if trustees are served with an application to vary, if they then chose to do nothing, any variation order would be binding on them (at least from the perspective of the English court).
In another English case TM v. AH  EWHC 572 (Fam), however, Moor J took the opposite view and held that, in these circumstances, trustees should be joined to proceedings. The author considers Moor J’s approach to be the more realistic one.
In some cases beneficiaries apply to the court to intervene in the proceedings. In that situation, as occurred in Tchenguiz Imerman v. Imerman  EWHC 3627 (Fam), the court might well order the beneficiaries to disclose within the England and Wales proceedings documents and information from any proceedings that are being conducted in the jurisdiction where the trust is situated.
In Imerman the court made its order as it was satisfied that disclosure was necessary and proportionate in order to determine the substantive proceedings and that such evidence was unlikely to be forthcoming from any other source.
The court can order any third party residing in England and Wales to provide information and documents through an application to the court by way of a third party disclosure order.
The England and Wales court could issue a letter of request to the court where the trust is situated seeking information from the trustees.
The court might also make an order made for a Single Joint Expert to be appointed to investigate transfers into and out of trusts and provide a valuation of the trust assets.
In a case where divorce proceedings are filed outside England and Wales and there is an England and Wales trust, it is likely that the England and Wales court would require the trustees to answer a letter of request sent by the court of the foreign divorce jurisdiction.
The England and Wales court can draw adverse inferences if trustees fail to comply with an order. If a trust officer or director was visiting the jurisdiction of England and Wales, they could also be compelled to provide such disclosure by way of a third party disclosure order and could be committed to prison for failing to comply with a court order.
If the trustees submit to the jurisdiction, they would be likely to be expected to put forward a witness statement from a trust officer and to be tendered for cross-examination. Furthermore, if trustees submit this may engender expectations that they will comply with whatever order the England and Wales court makes, whereas the trustees would have to make clear this was not the case, which in turn could place the trustees in a conflicting position.
The court’s reaction to trustees on disclosure issues will very much depend on how the trustees have conducted themselves. If the trustees will have already co-operated and given an initial statement providing some level of initial disclosure as explained above, the England and Wales court would be more likely to understand the trustee’s situation and the fact that they may well still need to obtain the blessing of the offshore court in any event after a decision to provide financial disclosure has been handed down by the England and Wales court.
1.2. Financial orders
What types of orders can the court make at the conclusion of England and Wales divorce proceedings where there is either an England and Wales or an offshore trust?
- if the court is satisfied that a trust is likely to be a financial resource available to the spouse in the future, it could make a lump sum order against that spouse and/or the trustees (if the trustees are a party to the proceedings) pursuant to section 23 of the Matrimonial Causes Act 1973 (the MCA);
- an order pursuant to section 24(1)(c) of the MCA varying a trust as a nuptial settlement (see below);
- an order pursuant to section 37 of the MCA to set aside transfers into or out of a trust (see below);
- an order directing the settlor beneficiary to revoke a revocable trust (a Revocation Order (see below)); and
- ancillary orders or directions to effect/enforce a variation order and/or a Revocation Order.
An order pursuant to section 24(1)(c) of the MCA varying a trust as a nuptial settlement
Section 24(1)(c) allows a party to apply for, “An order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or postnuptial settlement... made on the parties to the marriage”. The English court can only exercise this jurisdiction if a trust is found to be nuptial. In theory, the court’s discretion to vary trusts is unfettered and can include (but is not limited to) ordering payments or transfers of assets out, adding/removing beneficiaries, adding/removing trustees, and the creation of sub-trusts.
An order pursuant to section 37 of the MCA to set aside transfers into or out of a trust
In order to exercise the power to set aside dispositions pursuant to section 37, the court has to be satisfied that three requirements are met:
- that a disposition has been made to a third party;
- that the disposition was made with the intention of defeating a claim for financial provision; and
- that if the disposition were set aside, financial provision or different financial provision would be made.
The disposition will not be set aside if the third party provided valuable consideration, acted in good faith and had no notice of any intention to defeat the claim. However, if the disposition was made within the previous three years, there is a rebuttable presumption that the disposition was made with the intention of defeating the claim.
Whilst the “intention to defeat” need not necessarily be a party’s sole or dominant intention, the court is concerned under section 37 with the spouse’s subjective intention: see Kemmis v. Kemmis  2 FLR 223, which was cited with approval by Anthony Chan J in WYSL v. FHCBA  HKCU 2811. In Kemmis, “what had to be proved was not merely a dishonourable intention but a dishonest and fraudulent one, and the evidence which was required to tip the balance had to be correspondingly more convincing”.
A Revocation Order
An order compelling a spouse who is also settlor and beneficiary can potentially be made to revoke any revocable trusts as a mandatory injunction, for example, as an aid to the enforcement of a lump sum. In other words, it could order the spouse settlor beneficiary to make a lump sum payment and direct him (either simultaneously, or more likely in default of payment, to revoke any revocable trusts). Should that spouse settlor beneficiary fail to comply with the court’s direction, he would not only be in contempt and liable to imprisonment, but the court in England and Wales has the power to nominate a person in the settlor beneficiary’s place to execute the necessary (revocation) documents. This is what occurred in the Hong Kong case of H v. W  HKEC 955 (see the Hong Kong chapter).
The England and Wales court will want to do all it can to ensure that its order is enforced. In the event that the beneficiary has failed to comply with an order to pay a lump sum, and the trustee has been joined into the proceedings, the court might well order the trustee to pay the lump sum. This could occur whether the trust is onshore or not.
In this context, it might conceivably seek to enforce the order by putting pressure on beneficiaries who are parties — particularly in the light of H v. W (see above).
The England and Wales court might also be persuaded (as a last resort) that it should make:
- a mandatory injunction in support of its order directing trustees to confirm their consent to the order (although the England and Wales court would not actually need their consent to make a variation order); or
- a prohibitory injunction preventing trustees from contesting the enforceability of the England and Wales court’s order in the offshore jurisdiction.
A less draconian approach that a spouse might pursue is to argue that, having been joined to, and participated in the proceedings, beneficiaries are estopped from contesting any variation order in any courts both inside and outside England and Wales. Such an argument would not necessarily require any form of injunction from the England and Wales courts. The spouse could contend that the estoppel is an automatic legal consequence of the England and Wales proceedings.
In the event that trustees fail to comply with orders (for example for disclosure, payment of a lump sum, or for an order varying the terms of the trust), the claimant spouse may have to commence separate enforcement proceedings in the courts of the jurisdictions governing the trusts.
Although it is not a sanction as such, the England and Wales court can draw adverse inferences if the trustees fail to comply with an order.
If a trust officer or director of the trust were in the England and Wales jurisdiction, they could be compelled to comply and could be committed to prison for failing to do so.
If a party fails to provide financial disclosure and/or pay a lump sum, Judgment Summons proceedings could be taken out against that party resulting in them being committed to prison. An attacking party who secures a lump sum order and/or a variation of settlement order against assets situated outside the divorce jurisdiction might well find his success proves to be a pyrrhic victory because the order may not be enforced.
In the case of Barclay v. Barclay  EWHC 2026 the judge Sir Jonathan Cohen, however, dismissed the substantive Judgment Summons brought by Lady Hiroko Barclay against her former husband, Sir Frederick Barclay, for non-payment of £50 million (the first instalment of a total award of £100 million). He stated “It might seem strange to an outsider that a court can find on a civil standard that a payer has the means to pay £100 million and yet when he does not pay, finds that it cannot be satisfied to the criminal standard of proof that he has the means to make the payment….. It will, however, be obvious that the arguments I have heard in this hearing are very different to those that I heard last year and an analysis of the differing legal concepts provides the explanation. My ruling does not in any way reduce H’s liability to pay the sums ordered.”
See also the Jersey chapter where it is stated that: “Recent Jersey authority - Kea Investments Ltd v. Watson  JRC 009 - has confirmed that it is not possible for a judgment creditor, such as a spouse with an unsatisfied matrimonial award, to obtain execution against the interest of a discretionary beneficiary under a Jersey trust.” In the Jersey judgment itself of  JRC 009 in the Royal Court of 19 January 2021 the court held that: “Mr Watson is an adjudicated fraudster in and contemnor of the courts of England and Wales. Kea has the benefit of an English judgment including a declaration of entitlement to equitable compensation in a maximum sum of approximately £43.5 million and interim payment orders of £25,259,986.49, together with £3,837,356.57 in costs…. The affidavits of… a partner of… Kea’s English Solicitors show that despite considerable efforts at enforcement, a significant proportion of the Jersey judgment debt remains outstanding, and he deposes that there is a strong basis for saying that Mr Watson is engaged in an unlawful conspiracy with the Second Defendant (“Mr Gibson”), his “right hand man”, to defeat his creditors, in particular Kea.”
2 . Prenuptial and postnuptial agreements (PNAs)
PNAs are not binding contracts under the law of England and Wales. They are however enforceable by the court and the court is likely to take them into account in a final award provided that the PNA is unvitiated and its terms are “fair”.
In WC v. HC  EWFC 22, Peel J succinctly set out the law on PNAs and stated: “22. I do not need to look beyond Radmacher v. Granatino  UKSC 42 from which the following essential propositions can be drawn:
- There is no material distinction between an ante-nuptial agreement and a postnuptial agreement (para 57).
- If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, “what is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end” (para 69).
- It is to be assumed that each party to a properly negotiated agreement is a grown up and able to look after himself or herself (para 51).
- 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).
- 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. (para 75).”
2.1. Procedural requirements
There are no separate procedural requirements for a PNA to be enforceable on divorce: the court’s jurisdiction cannot be ousted by the PNA and the court makes the final determination as to the extent to which it is enforced (if at all) and the parties will need (subject to circumstances where the case of Crossley applies - see below) to go through the standard and lengthy financial remedy procedure of exchange of financial disclosure in Forms E, attendance at a First Appointment and a Financial Dispute Resolution Appointment, and then to a trial if the case does not settle. To reduce the risk that a court will treat the PNA as vitiated and given no weight at all, both parties should have independent, specialist, legal advice, they should provide full financial disclosure to each other and the PNA should not be signed too close to the marriage date. It is good practice (but not a rule) that the PNA should be signed not less than 28 days before the marriage. The case of Crossley v. Crossley  EWCA Civ 1491 provides a “short circuit” to normal ancillary relief procedure in a PNA case where there for example is a short, childless marriage and the parties are independently wealthy.
2.2. Spouse’s financial claims
PNAs fully cover a spouse’s full income and capital financial claims on divorce including claims against assets held in trusts. There is no matrimonial property regime in England and Wales.
2.3. Children’s financial claims
PNAs in England and Wales do not usually incorporate arrangements for financial provision for children.
3 . The media and divorce/family law proceedings
Parties involved in family law cases in England and Wales should be made aware before starting proceedings that members of the media will generally be able to attend court hearings dealing with financial and children issues. Under the current rules, however, the court controls what can be reported.
The rules are now changing with the announcement by Lieven J on 18 January 2023 of the introduction of a one-year pilot scheme in Leeds, Cardiff and Carlisle resulting from Sir Andrew McFarlane, President of the Family Division’s, report on “Confidence and Confidentiality: Transparency in the Family Courts” of 28 October 2021. Sir Andrew stated in his report, “The present system in the Family Court whereby a journalist may attend any hearing but may not always report what they observe, is not sustainable. I have reached the conclusion that there needs to be a major shift in culture and process to increase the transparency in a number of respects. The conclusions that I have reached, following an extensive review, are published today. The review has focused upon the dual goals of enhancing public confidence in the Family Justice system, whilst at the same time maintaining the anonymity of those families and children who turn to it for protection. These twin principles of confidence and confidentiality are not, in my view, mutually exclusive and it is possible to achieve both goals. In addition to a range of ancillary proposals, my main conclusion is that the time has come for accredited media representatives to be able, not only to attend hearings, but to report publicly on what they see and hear. Any reporting must, however, be subject to very clear rules to maintain the anonymity of children and families, and to keep confidential intimate details of their private lives.”
Set out below is the current law which applies to all courts in England and Wales excluding Leeds, Cardiff and Carlisle and the one-year pilot scheme which has been introduced in Leeds, Cardiff and Carlisle.
The current law
The principal element of the current statutory scheme is section 12 of the Administration of Justice Act 1960: This covers children and other cases – but not financial remedy proceedings. The combined effect of this section of the Act and the court rules is that accredited media representatives and legal bloggers are allowed to attend a private Family Court hearing as of right, but section 12 prevents the publication of information relating to proceedings if they concern children.
The court also restricts publication of confidential financial information disclosed in financial remedy proceedings pursuant to the powers and principles established in Clibbery v. Allen (No 2)  EWCA Civ 45, Lykiardopulo  EWCA Civ 1315 and HRH Louis Xavier Marie Guillaume HRH Tessy Princess of Luxembourg & Anor  EWHC 3095 (Fam).
Accordingly, the Financial Remedy Courts now ordinarily control the release of information for publication, where this is sought, by an express order. This is usually dealt with by way of Reporting Restriction orders.
The one-year pilot scheme
A key proviso of the changes is that the anonymity of individual children will be preserved. In his report, Sir Andrew said, “in my view it is possible to maintain the privacy of those children, whilst at the same time operating a much more open justice system.”
Journalists will be able to report on family court proceedings for the first time. Initially, court applications and child placement applications made within court proceedings will be open to reporting and, after a six-to-eight week period, private law children cases will also be reported on. Financial remedy applications will not form part of the reporting pilot. Reporting will be allowed only by accredited journalists and legal bloggers.
A new transparency order will define what can or cannot be reported. The transparency order will also allow documents to be released to the press including skeleton arguments/case outlines/position statements.
Under the current law, cameras and recording devices are not allowed into the court room. The same will apply under the one-year pilot scheme.
3.1. Reporting restrictions