In recent years, expats have experienced the case of being subject to the English court system (in the situation of divorce) even though they are no longer living full-time in the UK. Needless to mention how long both parties might have lived in England for all of their marriage, or whether we did not even live there. During divorce, a divorcing spouse can lay claim to this jurisdiction without struggling to have it. However, the process is relatively dependent on where either or both parties are habitually resident or domiciled during the time of divorce.
Furthermore, trusts, even those offshore, are not necessarily beyond the reach of the English divorce courts. Even trusts (a valid form of estate planning, prominently used by high-net-worth individuals to hold financial investments or acquire properties) are no exception to the reach of the English divorce court. If you need any help you can reach out to experts on family law Sydney.
Below are some tips:
- Since divorce protection begins at the outset of the trust, you should heed advice about the effect of a future divorce on beneficiaries at the point the trust is settled, and get the draft properly documented. In order for assets to be deployed to benefit the non-beneficiary spouse and the family’s children, the court reserves the right and power to vary a nuptial settlement. A nuptial settlement refers to a settlement created in contemplation of marriage intended to benefit either or both parties or their children.
- As an additional future security measure, should there arise any issues regarding trust (whether it is nuptial or not), there should be trust documentation, plus letters of wishes (if any), and the beneficiaries should enter into a prenuptial agreement.
- Being careful of the risk of “nuptialising” a trust is yet another important tip. A little dim area in the English court is the issue of trust not being nuptial when settled, but becoming nuptial in the future. So, it is safer to create a sub-trust for a specific purpose so as to reduce the risk nuptalising the trust to the assets in the sub-trust.
- Carefully keeping records of beneficiary requests because it can still be considered resourceful to the beneficiary party by the court.
- Since the English court reserves the right to make orders against an overseas trust, you should always put into consideration within which jurisdiction the trust is situated and its assets. It is unlikely that the court makes any variations if the trust and its assets are both overseas. But if they’re within the jurisdiction, they become more vulnerable.
- Before setting out to engage in any English divorce proceedings, trustees should be sure to check the domestic legislation in the country where the trust is established. On the other hand, foreign trustees should ascertain that they will not fall victim to any domestic legislation in the country where the trust is established. Even taking active steps to engaging English proceedings, offshore trustees should seek guidance from the supervisory court in the trust’s jurisdiction.
Conclusion
When it comes to divorce, and fairness to the financially weaker party, England, amongst others, is considered a very generous jurisdiction. As a result (and for other reasons too), London has frequently been dubbed the divorce capital of the world. If expat couples possess assets overseas, they are considered part of any financial pot to be split on divorce.
