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Talks Divorce

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QUESTION

Could you please help me.

I and my husband have been married for some fifteen years, and have two children at private school.

My husband has left me for another woman, and is now telling me, through solicitors, that I am going to have to move into a very much smaller property and go out to work, although our lifestyle has always been maintained out of Trust capital and income from my husband’s late parents.

My husband is now saying that, because he is not the only beneficiary under these Trusts that they cannot be taken into account, and that the Trustees are going to say that I should not benefit from the Trust income or capital. I am really concerned about this, because essentially our lifestyle has been paid for out of these Trust Funds for many years, as my husband works, but only earns a limited income.

I am also worried that my husband might also say that he cannot afford the school fees.

Can the Trustees of the Trust absolutely refuse to help us?

ANSWER

It seems to me that if, throughout your marriage, the Trust Funds have been relied upon and made available to you, your husband and the children, then a Court is likely to accept that Trust income and capital will be available to your husband in the future, and therefore capable of being distributed from your husband to you and the children in due course.

You do not say that there are other beneficiaries to these Trusts, but I take it that this is the case, but clearly, in the past, the sums that have been distributed from the Trust to you and your family have created no difficulties with the other beneficiaries.

I think in this case it is very likely that, whatever the terms of the Trust, your husband and the Trustees will find themselves under very distinct ‘judicial encouragement’ to distribute funds in such a way as at least to cover your children’s ongoing private education and your accommodation in an appropriate home, albeit depending on the value of the house in which you are living it may be that you will have to sell it and downsize.

I have no information here about the amounts you are discussing, but it might be that, depending upon the size of the Trust Funds and your husband’s income, some consideration ought to be given to your starting some training for yourself and your own future, when the children are old enough to allow you to do this.

I do not, however, think that your husband’s argument, or that of the Trustees, is convincing, and I certainly do not believe that he can ring-fence the Trust income or capital so that it is not taken into account on your divorce.

QUESTION

I married my husband thirteen years ago, after the premature death of my first husband. When I married I was in possession of a significant inheritance, which I invested shortly after my first husband’s death, and in fact have barely touched since.

Both I and my husband work and have done so throughout the marriage, and although I am really quite wealthy we have lived a very quiet and modest life.

I now want a divorce, but my husband is saying that he has an entitlement to 50% of my inheritance, although we have never drawn on it during our marriage.

Is this true?

ANSWER

No, I do not think it is.

The real question here is whether the assets that you have accumulated during the marriage and the income that you both generate for yourselves are sufficient to cover each of your foreseeable needs in the event of separation. I think that a Court will only dip into your inheritance to the extent that further monies are needed, over and above those accumulated between you during the marriage, to the extent that a home for each of you cannot be afforded out of your joint wealth.

In short, I think that the Court will consider it important that your husband’s foreseeable accommodation needs are met, and will want to be sure that he can address his own income needs, but as long as this can be done out of the money that you have made together, then I do not think that the Court will dip into your inheritance.

However, if necessary to acquire appropriate properties for you both to live in then I think the Court will take some of your inheritance, but leave you as much as they can in the circumstances.