BvB (2010)

What i find interesting about this case is the fact that two weeks before they married the guy asked his wife to be to sign a pre-nup, he had it drafted she had a short meeting with a solicitor who strongly encouraged her not to agree or sign it, she did anyway.

During AR proceedings hubby decided not to rely on the pre-nup, the judge presiding said he was wise not too as it would not stand a test.

The pre-nup was to be updated upon listed events including kiddies arriving - it never was updated, it was also decided she had not had in depth legal advice and what she did have suggested it was "wholly unfair".

B v B [2010] EWHC 3422


Ancillary relief. Husband named beneficiary of discretionary trust funds. Extent to which those were “financial resources” available to him. Wife sought award of £6.5m; husband proposed award of £3m. Wife awarded £4.5m, and substantial contribution to costs.

The parties married in 2001, and separated in 2007. At the time of the hearing their children were aged 2 and 6. The husband's resources (without the trust funds) were just under £6 million. The wife sought to aggregate this with the assets in the "A" and "B" trust funds, which had a total value of approximately £14.5 million. The wife sought an award of £6.5 million, the husband proposed an award of £3 million.

It was the husband's case that he created the trusts (with assets originating from his father) on behalf of his parents, sister and the family's charitable foundation, and that it was always understood and agreed that his interests were subordinate to their interests. It was the wife's case that the A and B funds were in reality resources readily available to the husband.

Despite an order inviting the trustees (a professional Jersey company) to produce documents, limited documents were provided and the trustees did not participate as witnesses. There was no evidence from the husband's father. Moylan J had "considerable doubts" as to the extent he could rely on the trustees.

Pursuant to section 25(2)(a) MCA 1973, the court shall have regard to the "financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future".

Moylan J relied upon the principles enunciated by Glidewell LJ in Thomas v Thomas [1995] 2 FLR 668:
1. The court should not put improper pressure on the trustees to exercise their discretion for the benefit of the wife.
2. The court should not however be misled by appearances, and should look at the reality of the situation.
3. If on the balance of probability the evidence shows that if the 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 possibly be met by a favourable response.

He also relied upon the "central question" articulated by Wilson LJ in Charman v Charman [2006]: whether if the husband were to request the trust to advance the whole (or part) of the capital of the trust to him, the trustee would be likely to do so.

Moylan J rejected the husband's case that the funds were always agreed and understood to be for the benefit of his family and not him. If the trustees were to advance capital and / or pay income to the husband to enable him to meet an award in the wife's favour and meet his own needs, the interests of the trusts and other beneficiaries would not be appreciably damaged. Answering the "central question", Moylan J was satisfied that the trustees would be likely to advance the income and / or capital requested.

The wife was awarded £4.5 million, and the husband was ordered to pay a substantial contribution towards the wife's costs.