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Talks Divorce

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QUESTION

I have been married for 29 years, and my husband and I have had four children, all of whom are now adult.

When I married my husband’s family were running a large family company which throughout the marriage has thrived, and my husband is a major shareholder and Chief Executive.

My husband has left me, and I had understood that I would have been entitled to half of all of our wealth, but my husband is telling me that this is just not the case because a lot of the assets that we now enjoy were inherited when his late father died.

This seems to me very unfair. Is it true?

ANSWER

Yes, it may be.

You do not tell me what values are involved, and it should be emphasised that every case is considered individually on its own merits in the Family Court. However, the Judiciary have distinguished wealth that has been acquired by the parties during the marriage, and assets that have been inherited by one or other party.

Essentially, the Court will, as a very first consideration, be very anxious to ensure that your foreseeable needs are met, as to both income and capital, but if these needs, generously interpreted can be met out of less than 50% of all of the family wealth then there is, it seems to me, a probability that your husband will be able to keep more than half if the assets comprise, to a significant extent, inherited assets.

It is going to be very important, therefore, in your case, that you give real thought and research to your foreseeable housing needs and income requirements.

QUESTION

My wife and I are separating after 20 years of marriage, and recently her father has died leaving a large Trust Fund, which as I understand it gives the Trustees a discretion as to whether and when to benefit the named beneficiaries, of whom my wife is one and her two brothers are the other beneficiaries. My wife is saying that because this is a discretionary trust it cannot be taken into account when deciding how to separate our financial affairs, but this does not seem to me to be reasonable at all.

Can you help me?

ANSWER

I think that the way a Court would look at this would be to try and work out whether a distribution to your wife by the Trustees would appreciably damage the interests of her two brothers in relation to the Fund. If the answer is no then I think that the Court will take the view that any request by your wife to the Trustees would be met with a favourable response and that therefore the Trust Funds are a resource that your wife can call on properly and should therefore be taken into account when considering her future.

It therefore seems to me that the Trust is a very relevant asset and one that any Court would undoubtedly take into account when deciding on an appropriate split of family assets. Indeed it may well be that the existence of the Trust will enable you to take more than 50% of the assets that you have acquired during the marriage, if such a share of those assets is necessary to address your future housing and income requirements.