BJ v MJ and Others  EWHC 2708 (Fam)
This is an English High Court (Family Division) case involving a Jersey proper law trust whereby Mostyn J examined the treatment of a Jersey trust in divorce proceedings and made an interesting comment about a Jersey trustee’s potential involvement in proceedings.
The parties married in 1980 and were both aged 65. They had one adult child. The wealth derived from the husband’s interest in a company in which he had worked during the marriage. That wealth was settled into two Jersey trusts. The beneficial class of the No 1 Trust included the husband, the wife and their child. The husband and wife were excluded from the No 2 Trust, although there was power to add the wife after the divorce.
The judgment contains a summary of the ‘various types of trusts which are commonly encountered in proceedings for financial remedy following a divorce’.
It was held that all assets, including the trust property, constituted matrimonial property and should be subject to the equal sharing principle. However, the ‘implementation of that equal sharing should reflect the clear arrangement made during the marriage, assented to by the wife to set up a trust ultimately to benefit their child and future generations’.
From the trusts, the High Court held that £1,475,735 was to be made available to the wife with £500,000 to be paid to her outright and £750,000 to be extracted from the settlements and settled on the wife for her life with the remainder to their child. The balance was to be by way of a charge against the former matrimonial home in favour of the trustees of the wife’s new settlement.
Mostyn J touches upon the duties and the role of trustees who are joined to proceedings together with the applicant’s obligations where the order being sought has an impact upon the interests of other beneficiaries. Mostyn J held that ‘it is incumbent upon the Applicant to draw the claim to the attention of any significant beneficiaries explaining that they are at liberty to apply to intervene or otherwise to make representations’.
Mostyn J also recognised the dilemma that trustees often find themselves in when a court is considering the extent to which trust assets should be treated as a resource of the parties but he warned of the risks of trustees failing to engage. He said ‘if the trustees have refused to participate meaningfully or helpfully in the inquiry then neither they nor the beneficiary can complain if the court draws robust conclusions as to the likelihood of future benefit’.
In this regard, one solution suggested by Mosytn J was for the trustees to participate in proceedings ‘qua witness’ which he suggested could not be ‘construed as a submission to the jurisdiction’.
It must be debatable whether the trustees would be prepared to risk taking the qua witness approach. If necessary, trustees should be prudent and consider making a directions application to the Royal Court as to the submission to the English court’s jurisdiction and/or the disclosure of information. In this regard, what is undoubtedly clear is that trustees will have to continue to consider their position carefully which means trustees ensuring they fully understand the issues and the types of orders that are being sought.
BJ v MJ  EWHC 2708
The English courts have once again ruled that offshore trust assets may form part of this ‘divorce pot’. The decision raises several issues of interest to trustees alike. In particular, the judgment provides insight into the court’s views on the participation (or lack thereof) by trustees in UK divorce proceedings. Specifically, the judgment implies that foreign trustees should participate in UK proceedings when requested by the court, or else should not complain if the court draws ‘robust conclusions’ to the detriment of a spouse beneficiary in those proceedings.
As in previous cases, the English court does not hesitate to make an order in respect of assets outside its jurisdiction, including an order that trust assets are to be made available for financial relief even where both the husband and wife are excluded persons under the terms of the trust. However, on the particular facts of BJ v MJ, the court’s potentially unenforceable order finds practical reinforcement in the form of a warning from the court that it will force the sale of the beloved family home in England should the Jersey trustees fail to comply.
The husband (H) and wife (W) were married in 1980 and are both 65. Both are originally from Mauritius but are deemed domiciled in the UK for inheritance tax purposes. The couple began living apart in 2009 and decree nisi was pronounced in November 2010. The family’s wealth derives primarily from H’s former interest in ABC Ltd (ABC), the shares of which were transferred to two Jersey trusts in 1994 along with certain other assets. W’s role during the marriage was principally that of mother and housewife. The assets outside the trusts included H’s pension, worth approximately £1.3m (value of the ftmd) and nearly £300,000 in other assets, of which just over half belonged toW.
For the last ten years of the marriage the matrimonial home was a substantial property known as ‘Green Farm’ set in 72 acres in Kent. Green Farm is owned by one of the Jersey trusts. W moved out of Green Farm in 2009 but H remains in the property, as does the couple’s adult son who lives in the annex at Green Farm. It was acknowledged that H had in recent years suffered serious ill health, having had a stroke in 2005 and undergoing two major operations prior to the proceedings. In respect of Green Farm, W conceded during her evidence that she did not want, at all, for H to have to sell Green Farm. it is noted in the judgment that ‘given H’s frail condition and obvious attachment to the property this was both kind and reasonable’ (para 78).
In 1994 an IPO of ABC was proposed and ‘riches were on the horizon’ (para 34). At the time, ABC was owned by H and two fellow ABC directors as to 33.33% each. In anticipation of the flotation, H and the remaining two shareholders each established trust structures. H established two Jersey trusts (Trust 1 and Trust 2) and a BVI company (Giloch) in February 1994. Gioch has two classes of issued shares, being ordinary shares, which are entitled to all declared Lee/a Heminings is a senior associate in the tax and private capital department at Lawrence Graham LLP 16 Trusts and Estates Law a Tax Journal July/August 2012 TRUSTS dividends of Giloch (all held by Trust 1) and deferred shares, which are entitled to the capital of Giloch on a winding up (all held by Trust 2).
Trust 1 provides the income to H for his life (with power to appoint capital to him) and thereafter toW for her life (with power to appoint capital to her), and thereafter is for the benefit of the son, siblings and siblingsin- law of H and the Charities Aid Foundation. A July 2006 letter of wishes requested that the Trust 1 trustee look to H as the principal beneficiary during his life time and then W during her lifetime and then after their deaths the son should benefit from the remainder.
H, W and the son are explicitly excluded as beneficiaries of Trust 2. The beneficiaries are grandchildren, remoter issue, the Charities Aid Foundation, siblings and siblings-in-law of H and employees of ABC. According to tax advice received by H in 1995, capital gains arising in Trust 1 and Trust 2 and capital distributions to UK-resident beneficiaries were not subject to UK tax due to H’s nondomicile status for CGT purposes. After the IPO in 1996, funds of approximately £3m flowed into Giloch.
Issues and findings
As noted by Mostyn J, the central question in this case is how trusts should be treated in the division of assets following divorce. Relying on the court’s authority pursuant to the Matrimonial Causes Act 1973, the judgment reviewed the various forms of trusts and discussed how each would be treated in divorce proceedings. Mostyn J suggested that the treatment of a trust should depend, in part, on evidence presented by the trustees. In a possibly novel interpretation, the court found that Trust 1 and Trust 2 and the BVI company together constituted a ‘nuptial settlement’, such that the court may make an order for variation. Finally, Mostyn J found that all of the assets in the case, including trust assets, should be shared between the spouses but that the award should reflect the succession planning agreed to by both H and W during the marriage. The above-noted issues are discussed in turn below.
Matrimonial Causes Act 1973
Under the Matrimonial Causes Act 1973 the family courts have wide discretionary powers to distribute the resources of divorcing parties. In making orders for financial relief on divorce, the court is to have regard to ‘the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future...’ (para 25(2)(a)). The courts have interpreted this reference to ‘other financial resources’ as applying to trust assets where it is likely that those trust assets will be made available to a spouse by the trustees. Paragraph 13 of Charmmi v Charinan  is cited for this principle: In principle, however, in the light of s25 (2)(a) of the Act of 1973, the question is surely whether the trustee would be likely to advance the capital immediately or in the foreseeable future. Mostyn J concurred with this interpretation, stating in para 18 that courts must engage in a fact-finding exercise as to whether the trustees will be likely to benefit a trust beneficiary if called on to do so.
Participation by the trustee
In making its determination as to whether trustees are likely to benefit a divorcing beneficiary, it is sensible for English courts to seek input from the trustees themselves. Where the trust is a foreign trust, however, an English judgment may not be binding on the trustees unless the trustees have submitted to the court’s jurisdiction. If the trustees expect that the judgment will be unfavourable to a trust beneficiary, then they may have a duty to take care not to submit to the English court’s jurisdiction. In BJ v MJ, Mostyn J acknowledges that foreign trustees sometimes take a limited position in their participation in English court proceedings ‘for fear that anything more active will be construed as a submission to the [Englishi court’s jurisdiction’ (para 20).
At para 20 the BJ v MJ decision cites the seminal Royal Court of Jersey decision in Mubarak v Mubarik , which similarly dealt with an English Family Court decision to vary the terms of a Jersey trust (para 67):
“As we have seen, the enforcement of a foreign judgment is based upon the foreign court having had jurisdiction (for the purposes of enforcement of that judgment overseas) over the person against whom enforcement is now sought in Jersey... In the case of the variation or alteration of a trust, those affected are likely to include all the beneficiaries as well as the trustees. The effect of any variation order is not usually confined to the husband and wife... Furthermore the trustee has legal title to the trust fund and is responsible for holding the trust assets in accordance with the terms of the trust deed... Accordingly, unless a trustee of a Jersey trust has submitted to the jurisdiction of the Family Division, it is very hard to see how any judgment of the Family Division varying or altering a Jersey trust can be enforced in Jersey under the ordinary rules of private international law because the Family Division will not have had jurisdiction over the trustee for purposes of the enforcement of foreign judgments (para 67).”
Despite setting out the reasons why foreign trustees must be cautious in participating in English proceedings, Mostyn J nonetheless indicated that there may be negative consequences for the trust beneficiary in question.
Non-participation by the trustees: Inferences
“In this field the court is therefore engaged in a fact finding exercise as to whether the trustees will likely benefit their beneficiary if called on to do so... [The court] will make its judgment on the available evidence, which will include evidence deriving from the trustees. If the trustees hove refused to porticipote meoningfully or helpfully in the inquirythen neithertheynortheir beneficiory con comploin if the court drows robust conclusions as to the likelihood of future benefit (para 18, emphasis added).”
Interestingly, Mostyn J further suggested that trustees should have no hesitation in participating in English proceedings as mere witnesses (para 21):
“I find it hard to see why participation by the trustees in a helpful or meaningful way in this court’s inquiry quo witness could be construed as a submission to the jurisdiction (emphasis in original).”
It is unlikely that the above remark, made in obiter by an English court, will be sufficient to persuade foreign trustees that full participation qua witness poses no risk of submitting to the jurisdiction. Thus trustees are put between a rock and a hard place: participate in English court proceedings qua witness and risk submitting to the jurisdiction to the detriment of the spouse beneficiary, or limit participation and risk the negative inferences the court may draw regarding the likelihood of future benefit - also to the detriment of the spouse beneficiary.
Classification as nuptial settlement
A trust may be varied in financial relief proceedings where it qualifies as a ‘nuptial settlement’. Broadly speaking, a nuptial settlement is a trust for the benefit of one or both spouses, created because of the marriage, or referring to the marriage, whether made before the marriage (prenuptial) or after the wedding (post-nuptial). As noted above, Trust 1 was created during the marriage and the beneficiaries include H, W and the son. The court ruled that Trust 1 is ‘unquestionably a post-nuptial settlement’ (para 60). With respect to Trust 2 however, H, W and the son are all excluded persons, and thus the trust does not at first glance appear to fit within the nuptial settlement concept.
However, the court considered advice received by H suggesting that, upon the trustees of Trust 1 and Trust 2 undertaking various independent steps, the entire value of Ciloch could be elevated in a tax-efficient way to either trust and thus be made available for distribution to H and/or W.
Mostyn J goes perhaps further than previous case law in finding that Trust 1, Trust 2 and Giloch together constituted a variable postnuptial settlement (paras 60 and 63):
“No. 2 Trust... is an integral, indeed key, component of the overall scheme. It is the left hand to the No. 1 Trust’s right hand...”
“In this case I have no hesitation whatever in finding that the three entities ‘viewed as a whole’ constitute a variable postnuptial settlement It would be absurd and arbitrary for me not to do so, for the question of whether the value in Giloch ends up in the No. 1 Trust or the No. 2 Trust is just a question of the timing of a particular meeting. If the Trustees of the No. 1 Trust cause a directors’ meeting of Giloch to be held which then votes all the assets of Giloch as a dividend in specie then all the value goes to No.1 Trust. If the trustees of No.2 Trust (who are the same as for No. 1) cause a general meeting to be held and vote to wind up Giloch then all the value goes to No.2. The result of W’s cloims for financial remedy surely cannot hang on the fortuity of which meeting comes first (emphasis added).”
In finding that the entire structure was a postnuptial settlement, Mostyn I sidestepped what could otherwise have been a rather tricky allocation of the value of Giloch as between Trust 1 and Trust 2.
Other issues of interest
Encouraging intervention by third parties
In para 12 of his judgment Mostyn J noted that he invited submissions from the son. The judgment suggests that where the trustee does not participate and there is no other party representing the interests of other beneficiaries ‘it is incumbent on the applicant to draw the claim to the attention of any significant beneficiaries explaining that they are at liberty to apply to intervene, or otherwise make representations’.
Thus one consequence of this decision is that other beneficiaries may be more likely to apply to intervene in divorce proceedings, particularly where the trust is discretionary and it is not clear which are the ‘significant’ beneficiaries.
Gifts from husband to son
As noted above, the parties separated in 2009, with W’s solicitor writing the first letter on 8 July 2009. Between 1 July and 12 August 2009, H made four transfers to the son for a total of £140,030. W argued that these sums should be added back to the divorce pot as a wanton dissipation.
Mostyn J declined to add back the gifts, noting the following (para 51):
“…the problem with [adding back] is that it does not create any actual money. It is in truth a process of penalisation. In my judgment it should be applied very cautiously indeed and only where the dissipation is demonstrably wanton. I am not satisfied that here the gifts to [son] are to be characterised in this way. True, the timing is suspicious, but other than that there was no evidence that the gifts were anything other than bona fide. They would represent sensible IHT planning anyway.”
Mostyn J went on to suggest that an application to have a transaction reversed is perhaps better made pursuant to s37 of the Matrimonial Causes Act 1973 where the disponee can be heard and where strict statutory criteria must be met.
Conduct of parties in the litigation
The court found that H suppressed evidence on his Form E and acted in an unacceptably threatening manner towards W in the lead up to the divorce application. On 14 June 2009 H’s financial adviser wrote a letter to W noting that divorce proceedings would be very costly for both parties and stating ‘In the event of filing for a divorce, [H] would do all in his power to draw the proceedings out for the longest period of time’. At para Mostyn J dismissed H’s assertion that the financial adviser was acting on his own in writing this letter. The decision noted that H’s conduct would likely result in adverse consequences in the awarding of costs.
Division of assets of the trusts
Having found that Trust 1, Trust 2 and Giloch constitute a single nuptial settlement, Mostyn J reviewed whether Trusts 1 and 2 should be varied, noting: ‘As with so many aspects of financial remedy law, the decision whether to vary a nuptial settlement, and if so how, is both fact-specific and discretionary’ (para 13).
The court reviewed submissions by H, W and the son. The judge determined that the distributive principles of needs and sharing (but not compensation) were relevant in this case.
Mostyn J found that while the primary focus of the trust arrangement was to avoid capital gains tax, there was a clear collateral understanding between H and W that the trust arrangement would benefit all the members of the family, including the son and future generations (para 48). Mostyn J took this succession planning into account in finding as follows:
In my judgment, all of the assets in this case, including all of the trust property, amounts to matrimonial property and should, in principle, be shared equally. But the implementation of that equal sharing should reflect the clear arrangement made during the marriage, assented to by W, to set up a trust ultimately to benefit [son] and future generations (para 79).
The aim of benefiting future generations is reflected in Mostyn J’s award, discussed further below.
Mostyn J set out the assets of H and W and of Trusts 1 and 2. Of the £5.9m total assets, £153,000 was in W’s name. The judgment also noted which assets were within the Court’s powers to award to W, being those assets physically located in the UK or directly owned by H.
In addition to a 50% share in the pension and various other adjustments, Mostyn J ruled that approximately £1.25m be made available to W out of Trust 1 and Trust 2. However, to reflect the succession planning intention of the parties in establishing the trust structures, the court ruled that only £500,000 be paid to W outright, with the remaining £750,000 to be settled on a new trust in favour of W during her lifetime with the remainder to the son.
Despite W’s evidence that she did not wish for Green Farm to be sold, Mostyn J nonetheless warned that he was prepared to force the sale of the property should the trustees refuse to co-operate:
“The trustees’ offer is that the sum of1.2 million (E500,000 + £700,000) will be made available... In light of my judgment I am expecting that £1.25m will be produced [by the trustees]. If I am wrong about this, then H and the trustees should understand very clearly that there are sufficient funds within this court’s powers to make available the whole of W’s entitlement by other means...”
“My order will not be perfected until the stance of the trustees has been ascertained. If the trustees signify’ that they will not cooperate with my award then I will deal with W’s entitlement by way of offsetting against the assets within my power. This will, of course mean that Green Farm will be sold, and that all or most of the pension will be awarded to W (para 87).”
This is perhaps a somewhat heavy-handed approach, given that the trustees’ original offer was a mere £50,000 shy’ of the court’s ultimate order.
Conclusion for practitioners
Superficially, the decision in BJ v MJ is yet another example of the English courts flexing their financial relief muscles in the face of properly established offshore trusts. However, the ultimate award recognises the trust planning carried out during the marriage (albeit to a limited extent) in that significant sums are awarded in trust as opposed to outright.
The decision presents a broad and somewhat novel interpretation of ‘nuptial settlements’ and encourages intervention in divorce proceedings by third-party beneficiaries. It also engages with the issues of wanton dissipation and the effects of a party’s conduct prior to and during divorce proceedings.
Of perhaps broadest significance are the court’s comments regarding the participation of foreign trustees in UK proceedings. This decision again begs the question of whether it is in a beneficiary’s interests for foreign trustees to participate in the proceedings and risk submitting to the jurisdiction of the English courts.
It is unclear how the Jersey trustees in this case will respond and whether court approval in Jersey will be sought.