B v B

When assessing financial resources under section 25 of the Matrimonial Causes Act 1973, trust assets may be relevant even where the spouse has no absolute entitlement. The court should determine whether the spouse has any interest or potential interest and, if so, the extent to which the assets are likely to be available in the foreseeable future. The central inquiry is whether the trustees would probably advance capital or income on a genuine request. The court must avoid improper pressure on trustees, but may take account of likely access where the interests of the trust and other beneficiaries would not be appreciably damaged. In a long relationship where wealth is non-matrimonial, needs may be the dominant consideration, although the court must stand back and assess fairness in all the circumstances.

The wife applied for ancillary relief following the breakdown of the marriage. The principal dispute concerned whether assets held in Jersey trusts, later consolidated into the A and B funds, were financial resources available to the husband under section 25 of the Matrimonial Causes Act 1973. The funds were worth approximately £14.5 million. The husband contended that they were held principally for his father and sister and were not available to him. The wife argued that he could obtain access to them to meet the award and his future needs. The court also had to determine the appropriate award by reference to needs, sharing and the other statutory factors.

1. The court found that the husband was a named discretionary beneficiary of the relevant trusts and that the trustees could pay him income or appoint capital. The issue was therefore the likely extent of his access to the A and B funds, rather than whether he had any possible interest.

2. Applying the approach in Thomas v Thomas [1995] 2 FLR 668 and Charman v Charman [2006] 2 FLR 422, the court considered whether a genuine request would probably be met and whether making funds available would appreciably damage the trusts or other beneficiaries. The court was not to invade the trustees’ discretion or place improper pressure upon them.

3. The evidence did not establish that the funds had always been intended exclusively for the husband’s father and sister. Earlier attendance notes showed that the husband had regarded the O Trust as a pension or insurance fund for himself and his family and had at one stage believed that the F Trust was primarily for his benefit. The later evidence that the funds were not for his benefit was treated as self-serving and inconsistent with the more compelling records.

4. The court concluded that the husband’s sister and father had no current or likely future need requiring priority from the funds. If the husband requested sufficient income or capital to meet the wife’s award and his own needs at a comparable level, the trustees would probably comply and the interests of the trusts and other beneficiaries would not be appreciably damaged. The funds were therefore resources likely to be available to him.

5. Given the length of the relationship and the non-matrimonial origin of the wealth, need was the most influential principle, with sharing subordinate. A fair award was £4.5 million, comprising £2.25 million for housing and £2.25 million for income needs. The husband was also ordered to pay child maintenance of £15,000 per child annually. Payment of the lump sum was required by 25 September 2009, and the husband was ordered to pay £275,000 towards the wife’s costs.