The question of whether assets held in trust should be counted as matrimonial assets has come to the fore again with reports in the press that Athelstan Whaley is appealing against the Judgment that he must pay his wife, Belinda, £3.75m. The basis of his appeal appears to be that the total matrimonial assets are actually approximately £4m, not the £10m the Court found by including trust assets.

The case turns on whether two “dynastic trusts” set up by Mr Whaley’s father in 2001 to benefit his heirs should be included in the matrimonial assets. The Court, in making its decision, decided that the trusts were both matrimonial assets despite Mr Whaley being a beneficiary of only one of them. It is Mr Whaley’s case that, not only does he not have access to the funds in the trust, but the trustees will not provide him with the money in order to pay his wife. If this is the case, after paying the sum of £3.75m he will be left with only approximately £250,000.

Mrs Whaley’s barrister has stated that the Judge found that Mr Whaley was not being honest that the trustees were complicit.

The Judges in the Court of Appeal have reserved their decision to a later date.