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(Family Division, Mostyn J, 10 May 2013)
The husband and wife were married for 33 years. The husband claimed he had substantial assets prior to the marriage but had not provided any evidence of the extent. The value of assets which were in existence at the commencement of the marriage was £316,880. In financial remedy proceedings following divorce the parties had assets of £2.5m, £1.3m of which were held in a post-nuptial settlement comprising of a Jersey discretionary trust which through a company structure owned two retirement villages, operated by the husband as well as other assets.
The beneficiaries under the trust were the husband, his spouse, and any issue from that relationship. The wife applied for a variation of the settlement pursuant to s 24(1)(c) of the Matrimonial Causes Act 1973 and sought an outright transfer from the trust assets.
On the facts, applying the principles in the line of authorities including BJ v MJ (Financial Remedies: Overseas Trusts)  EWHC 2708 (Fam),  1 FLR 667, the entire trust structure comprised a variable post-nuptial settlement that the court was empowered to deal directly with and to make orders in respect of the trust assets owned by the companies.
The wife's proposal to have one of the retirement villages transferred outright to her was completely unrealistic as she lacked the capital and experience necessary to run a village.
The wife would receive a liquidated sum of £1,229,965, which equated to 49% of the assets, comprising of the matrimonial property, a sum owed to her by the daughter and an outright payment from the settlement of £391,000. The husband would have 2 years to raise the latter sum subject to a 5% interest rate and the trust would be varied to remove the wife as a beneficiary and a director of any of the companies.
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