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Trusts and Divorce

Trusts and Divorce

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 In this episode, Simon takes advantage of Anita’s absence to indulge his favourite topic: trusts and divorce.Simon is joined by three leading experts in the field:Emma Hargreaves is a barrister at Serle Court chambers, specialising in contentious trust litigation.Abby Buckland is a partner in the family team at Kingsley Napley and was part of the team who were successful in an argument that a trust was a sham in Michael v Michael.Louise Woolrich is a partner at Carey Olsen in Jersey, specialising in trust litigation.We start by going back to basics and exploring what is a trust, and by getting to know the cast of characters who appear in any case involving trusts: the settlor, the trustee, the beneficiary and the protector. We answer the question “what is an offshore trust, and should we always be suspicious of them?”.We then travel through the various stages of a case involving trusts from disclosure to enforcement. We consider trusts as resources and nuptial settlements and discuss whether trustees should be joined to proceedings and, if they are, whether they should submit to the jurisdiction. We discuss how trustees can be involved in without prejudice negotiations and FDRs in order to try and bring about settlement. Finally, we look at how to get orders enforced, in England and offshore.We look at each aspect from the perspective of the beneficiary spouse, the non-beneficiary spouse and the trustee. Practical tips from our speakers at every stage, whoever you are advising.Abby refers to a number of key English law cases on nuptial settlements and sham:Ben Hashem [2008] EWHC 2380Brooks v Brooks [1996]Snook v. London & West Riding Investments Ltd [1967] 2 QB 786Thomas v Thomas [1995] 2 FLR 668Michael v Michael (No 1) [2024] EWFC 463Louise refers to key offshore decisions:Disclosure of trust informationArticle 29 of the Trusts (Jersey) Law 1984Re Rabaiotti 2000 JLR 173Re H Trust 2006 JLR 280Submission to the jurisdictionRe H Trust 2006 JLR 280In the Matter of the Poon Family Trust [2011] JRC 167, [2014] JRC 254A and [2015] JCA 109EnforcementArticle 9 of the Trusts (Jersey) Law – the “firewall provision”In the Matter of the X Trust 2002 JLR 377In the Matter of the IMK Family Trust 2008 JLR 250 and 2008 JLR 430In the Matter of the PQ Employer Financed Retirement Benefit Plan [2019] GRC 013Emma refers to the following cases and legislative provisions:Prest v Petrodel Resources LtdPugachevs53 Law of Property Act 1925s423 Insolvency Act 1986
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