AAZ v BBZ & Ors

In financial remedy proceedings, the court assesses resources by considering likely access to assets, not merely legal ownership or control. A discretionary trust may therefore constitute a financial resource where the beneficiary could probably obtain distributions. The sharing principle ordinarily requires equal division of matrimonial property, subject to narrowly defined departure points such as genuinely exceptional and unmatched contributions. A company may be treated as a nominee or bare trustee where the evidence shows that the beneficial ownership remains with the spouse. Dispositions made to defeat or impede a financial claim may be set aside under the Matrimonial Causes Act 1973 and, where applicable, the Insolvency Act 1986.

The applicant sought financial relief following her divorce from the first respondent after a long marriage. The second respondent was the trustee of an offshore discretionary trust, and the third respondent was an offshore company said to hold substantial assets. None of the respondents appeared at trial or provided responsive evidence.

The court had to determine the duration of the marriage, whether the wealth was matrimonial, whether there was a special contribution, whether trust and company assets were available resources, whether dispositions should be set aside, and whether service and enforcement arrangements were effective.

1. Financial resources. The court applied the access or likelihood test: the relevant question was whether a discretionary beneficiary requesting capital would probably receive it. The trust assets were therefore resources available to the husband under section 25(2)(a) of the Matrimonial Causes Act 1973.
2. Sharing and contribution. The entire wealth had been generated during the subsisting marriage and was matrimonial property. Equality was the appropriate starting point. The husband’s business achievements did not satisfy the narrow exception for a special or stellar contribution because his contribution was matched by the wife’s domestic and family contribution.
3. Nominee and bare trustee. The evidence of gratuitous transfers, the company’s funding of the husband’s lifestyle, the absence of accounts or documentary explanation, and the respondents’ silence established that P Ltd held its assets for the husband on a bare trust. The corporate personality principle did not prevent orders against a company acting as bare trustee.
4. Asset dispositions. The March 2015 disposition was presumed under section 37 of the Matrimonial Causes Act 1973 to have been made with an intention to defeat or impede the wife’s claim. That presumption was unrebutted. The disposition was also a transaction at an undervalue within section 423 of the Insolvency Act 1986, entered into to prejudice the claim, and was set aside.
5. Outcome. The wife’s claim succeeded in £453,576,152. The husband was ordered to pay £350 million, with P Ltd jointly and severally liable. Specified property, chattels and the modern art collection were transferred to the wife. Alternative service on P Ltd through the husband’s solicitors was declared good service under FPR 2010, r 6.19(2).

First-instance decision. No prior appellate decision is stated in the judgment.