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11 - Tapping into Trust Assets for Redistribution upon Divorce in England and Wales

from Part II

Published online by Cambridge University Press:  19 April 2018

Richard C. Nolan
Affiliation:
University of York
Kelvin F. K. Low
Affiliation:
City University of Hong Kong
Tang Hang Wu
Affiliation:
Singapore Management University
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Summary

In the event of divorce, the English family courts have very wide discretionary powers under the Matrimonial Causes Act 1973 to make financial provision (section 23) and property adjustment (section 24) orders, including the power to vary ante- and post-nuptial settlements. The court must consider the matters stated in section 25 which include the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future (section 25(2)(a)). A key financial resource that spouses might dispute over upon divorce, especially in high-asset cases, is trust assets. The family courts certainly have not shied away from taking a liberal approach towards identifying assets, including trust assets, which may count as financial resources available for redistribution. However, accessing trust assets for redistribution purposes upon divorce may be problematic. These problems may be compounded by the global nature of wealth management and asset protection trusts which in turn raise a host of issues and challenges for the family courts. This paper seeks to examine some of the challenges that the family courts are likely to face in seeking to make ancillary relief awards against trust assets.
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Publisher: Cambridge University Press
Print publication year: 2018

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