In Quan v Bray and Others  EWHC 3340 (Fam),  1 FLR (forthcoming and reported at  Fam Law 29) Mr
Justice Coleridge found that a charitable trust established by the parties
during their marriage for the preservation and welfare of the Chinese tiger was
not a post-nuptial settlement capable of variation under s 24 of the
Matrimonial Causes Act 1973.
Mr Justice Coleridge categorised a nuptial
settlement as a settlement 'made on the parties to the marriage' which made
some form of continuing provision for both or either party, with or without
provision for any children. Furthermore, a settlement which was
non-nuptial at its inception could subsequently become ‘nuptialised’ if there
was a proven flow of benefit to the parties during the marriage. A later
disposition from a trust could also, in itself, constitute a post-nuptial
settlement. In the particular circumstances of the case, a vague
unspecified intention to benefit the parties in the future was not sufficient
to nuptialise the settlement. Therefore, the assets in the settlement
were not capable of variation by the court, nor were they a resource available
to the husband. It was therefore wrong to make a lump sum order against him in
the expectation that funds would be provided by the trust. The full version of this article appears in the March 2015 issue of Family Law.
Online subscribers can access the full version of the article here.