The way each different type of trust is treated on divorce varies significantly, so it's essential for couples and trustees to get expert advice.
Family trusts are usually established to pass wealth down the generations and/or to save tax. There are many different types and how they are dealt with on divorce can vary greatly. To add to the complexity, there are often competing interests related to trusts that affect the wider family and need to be taken into consideration.
The orders a court can make on a divorce will depend on the nature of the particular trust. If you or your partner is a beneficiary, the trust interest will need to be disclosed, even if there's an argument its value shouldn't be shared in the same way as other assets.
Getting the right information is essential. In particular, you'll need to know whether the trust is "nuptial" or "non-nuptial". This is complex but is critical as a court can make orders directly against nuptial trusts as well as against bare trusts where the assets are treated as actually belonging to the individual.
Our family lawyers are part of one of the largest and most highly regarded private wealth teams in the country, advising individuals and families on establishing and managing all kinds of onshore and offshore trusts. This means that whether you're facing a divorce yourself, a trustee concerned about the implications of family breakdown or you're looking at trusts alongside a pre-nup to protect family wealth for the future, you'll have access to the very best advice.
Our family team understands how trusts work and our expertise and experience enables us to find the best way forward. Our focus is always on reaching an agreed outcome, even where there are court proceedings. A couple of examples of our work illustrate this:
- In the High Court case of Tchenquiz-Imerman v Imerman, we represented the adult children beneficiaries of a trust set up by their father so that their views were heard when it came to the financial settlement between him and his wife. There were issues around the disclosure of documentation from Jersey proceedings. Our advice helped ensure that the children's interests were protected when the overall financial settlement was finalised by agreement.
- We dealt with complex arguments in a divorce case involving a trust set up for tax purposes which, on the face of it, excluded our client and his wife from having any benefit. She was arguing that the trust provisions could be sidestepped to increase her financial settlement. We successfully negotiated an order by consent which allowed the family to plan effectively for the future.