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  • Duckworth's Matrimonial Property and Finance
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Duckworth's Matrimonial Property and Finance

"The leading textbook in this area"

Lord Wilson

As part of the acquisition process of Jordan Publishing by LexisNexis, Duckworth’s Matrimonial Property and Finance have been divested to a third party publisher, Bloomsbury Publishing plc

New points of contact are 01444 416119 or  richard.price@bloomsbury.com

For more information about the acquisition by LexisNexis please click here.

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This work provides an unrivalled source of advice and expertise, dealing with day-to-day problems, delivering practical solutions and is available as either a print or online subscription. Written by a leading family law barrister, the author meets the requirements of the modern practitioner, offering detailed coverage of all major issues.

"It is the role of a looseleaf like this not only to state the law as it is but also to hazard a forecast as to where it may be heading. This thrusts on a writer the necessity of analysing recent decisions of the High Court and Court of Appeal, looking for any gems of insight they may contain as the harbinger of things to come." 
Peter Duckworth

A subscription provides

  • Commentary - Authoritative, lucid commentary that provides insight into how the court will act
  • Statutory materials - Know your sources and keep pace with amendments
  • Precedents - Express clearly what you want with this bank of over 100 precedents, written in plain English. Includes a fully nuanced Pre-Nuptial Contract
  • Financial Tables - Collated from a wide variety of sources, the financial tables provide you with hands-on information about tax, child support, welfare benefits, house prices and economic indicators
   
  • Division A: Property and Occupation Rights
  • Division B: Financial Provision
  • Division C: Special Cases
  • Division D: Agreements and Consent Orders
  • Division E: Variation, Enforcement and Appeal
  • Division F: Financial Tables
  • Division G: Precedents
  • Division H: Practice Directions etc
  • Division I: Statutes
  • Division J: Statutory Instruments
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Find out what is in the latest update

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 Find out how to use this looseleaf
"The leading textbook in this area"
 
Lord Wilson

 
"Peter Duckworth's book is both comprehensive and user-friendly and I recommend it to all practitioners"

 Grant Howell, Family Law

 
"This book will become a good friend. Call for it on approval"

 New Law Journal

 
"If White was the Renaissance, Miller is the Enlightenment. The law of matrimonial finance has changed for all time"

 Peter Duckworth

Section 6 Trust

A Introduction


[65]

‘[Here] is a network of offshore, largely Liberian corporations involved in the ownership of the assets used by the parties and in the administration of the family funds. Nothing is more calculated to set the bells ringing in a specialist family lawyer's mind than to be faced by such wealth contained within such a structure. It is designed and intended to be impenetrable and when it supports a lavish standard of living it is invariably like a red rag to a bull.

‘In order to prevent the instigation of an exhaustively searching enquiry, respondents to such applications are required to be from the outset perhaps even fuller and franker in the exposure and explanation of their assets than in conventional onshore cases. Otherwise skulduggery is instantly presumed …'

Complex trusts are often employed as a means of helping wealthy people to pay less tax. All too often however Plan A (to save tax) becomes Plan B (how to avoid giving away too much on the divorce). Needless to say, this possibility calls for the exercise of considerable expertise on the part of the practitioner in rooting out, or as the case may be defending, family arrangements.

1 Substance, not form

[66]

A starting point is that courts will seek to pierce through to the underlying reality of a trust. This is the message from the leading case of Thomas v Thomas, where Waite LJ said

‘… the court must be equipped, in a society where the forms of wealth-holding are diverse and often sophisticated, to penetrate outer forms and get to the heart of ownership. But certain principles emerge from the authorities. One is that the court is not obliged to limit its orders exclusively to resources of capital or income which are shown actually to exist. The availability of unidentified resources may, for example, be inferred from a spouse's expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example, of a beneficiary under a discretionary trust or someone who is dependent on the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case.' (Emphasis added.)

Glidewell LJ was even clearer. In words that would apply equally to wives, he enunciated three principles:

(1) where a husband can only raise further capital, or additional income, as the result of a decision made at the discretion of trustees, the court should not put improper pressure on the trustees to exercise that discretion for the benefit of the wife;
(2) the court should not, however, be misled by appearances; it should look at the reality of the situation;
(3) if on the balance of probability the evidence shows that, if trustees exercised their discretion to release more capital or income to a husband, the interests of the trust or of other beneficiaries would not be appreciably damaged, the court can assume that a genuine request for the exercise of such discretion would probably be met by a favourable response. In that situation if the court decides that it would be reasonable for a husband to seek to persuade trustees to release more capital or income to him to enable him to make proper financial provision for his children and his former wife, the court would not in so deciding be putting improper pressure on the trustees.

Thomas is therefore an illustration of a wider dynamic at work in divorce cases, namely the willingness of family judges to equate lifestyle with resources; to be sceptical about assertions of penury, when they are contradicted by the appearance of plenty.
Looseleaf updating
The looseleaf arrangement of Matrimonial Property and Finance enables the book to be kept constantly up to date by the removal and insertion of updating pages. These are supplied at least three times a year in the form of Updates.Each Update is accompanied by filing instructions which should be followed carefully to ensure that your book is fully and correctly updated. At the end of the Binder, you will find a Filing Record card which should be filled in each time an Update has been filed. A Checklist of Pages is sent with each updating issue, to be filed at the back of the Binder1.You should use this to check that your copy of Matrimonial Property and Finance has been correctly updated.

Structure of the book
The binder is divided into ten Divisions labelled Awhich are separated by blue plastic divider cards. Divisions A, B,D and E are further divided into subdivisions, for example D1 and D2. Tinted tabs at the page edge have been included to aid navigation through these subdivisions. Details of the contents of each Division(or subdivision) will be found at the beginning of each.

Paragraph numbering

The text is divided into numbered paragraphs. Cross-references tomaterial in other Divisions (or subdivisions) are to the paragraph numbers inthose Divisions. For example, a reference to A2[40] directs the reader to paragraph 40 in Division A2. Where no letter (or letter and number)appears outside the square brackets, the reference is to a paragraph number inthe same Division.

Division F

Division F containsfinancial tables which are grouped into eight categories and numbered, forexample, Table 1.1.

Page numbering

The page number is at the foot of each page and includes theDivision letter (or subdivision letter and number) and the page number, egA2–31, C–12.

How to use the precedents

The precedents in Division Gare model documents which are intended to be adapted for use as workingdocuments. These are available on the accompanying disk, in word-processingformat. Further details concerning the use of the disk and its contents areavailable in the file a:\readme.text.

Within the model documents, the text in square brackets initalics gives instructions; the text in square brackets in roman is suggestedtext or alternative wording. Alternative provisions are introduced by [EITHER [alternative A] OR [alternative B]], etc. Once thedocument has been modified and completed to suit individual needs, the squarebrackets, instructions, alternative text and any clauses which are not requiredshould be deleted. Any text in round brackets should remain.

Tables and index

The book contains tables of cases, statutes, statutoryinstruments and practice directions. These are located behind the plasticdivider card marked ‘Tables’.

A subject index appears at the end of the binder.

The tables and index will be updated along with the rest of thebook.
Print Subscription Information

£524.00 main work inc mainland UK p&p (there is an additional cost for non-UK mainland p&p)
2 updates per year
Annual subscription January - December
Annual renewal approx £456.00
Update 31 (August 2015) 

This update contains general updating of Divisions B1, B3, F, H, I and J to take account of new legislative and case-law developments.

Have a question about this product? Please get in touch by completing the boxes below.

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