This was an application for ancillary relief following the wife’s divorce petition of October 2012, upon which decree nisi was pronounced on 17 April 2013. At the time of these proceedings the wife was 44 years of age, and the husband was 41. On paper, the husband had almost no assets and a modest income. However, the husband came from a family of great wealth with substantial lands in Pembrokeshire which they had owned for generations. His financial security was therefore absolutely assured.
The wife and the husband had first met in 1999. They had married in February 2003, having set up a media consultancy company in which they each held a 50% shareholding. They lived together in the husband’s parents’ home until March 2004 where a cottage (the cottage) on the estate was gifted to them by the husband’s parents. They renovated the cottage and sold it some months later on 30 July 2004. The proceeds of sale were applied to discharge joint debts, and the surplus was lent to the company, spent on everyday household expenses, and £21,000 was spent on their new home which was a farmhouse on the estate requiring renovation work. Title was held at that point by the husband’s father and later by the husband’s father and mother, though the improvements were financed with their own money deriving from the gift of the cottage.
On 21 April 2009, the property (the property) was transferred to trustees (the trustees) to hold on the terms of an interest in possession trust (the trust) for the benefit of the husband. There was a power of advancement in favour of discretionary beneficiaries who were the children and the remote descendants of the settlor, with an additional power to add persons under clause 3 which was exercisable by the settlor or by his widow or by such other person nominated in writing by the settlor. In default, the property was to be held for the husband’s brother absolutely. On the same day, the husband executed an occupation agreement with the trustees which enabled the husband to live in the property on the proviso that he paid utilities and other disbursements relating to it. The parties lived in the property until their separation.
The trustees contended that the trust was not a nuptial settlement capable of being varied under s24(1)(c) of the Matrimonial Causes Act 1973. Alternatively, they contended that if the trust were a nuptial settlement, the only nuptial element which was capable of variation was the husband’s occupancy agreement, rather than the property itself.
- 1) The trust was clearly a nuptial settlement. It was stated in contemporaneous evidence that it was ‘to make provision for a home there’ for the husband and the wife and therefore made some form of continuing provision for both or either of the parties to the marriage.
- 2) The power of advancement at clause 5.2 made the settlement as a whole, and the property held under its terms, a nuptial settlement capable of variation.
- 3) The wife should be entitled to £23,000 which she had contributed to the property by way of improvements and the trust would be varied outright to make provision for her to that extent.
- 4) As £15,000 was lent to the company by the parties out of the proceeds of the cottage, half was to be paid to the wife by the husband as it was her money, leaving a total sum of £30,500.
- 5) Reflecting the sharing principle and at the same time the fact that the trust was intended to ensure that the property remained as a farm or estate asset, the wife should be entitled to a further award but not on an outright basis from the trust.
- 6) Half of the net value of the property was £157,000. Accounting for the sum already received, the trust was to be varied to create a wife’s fund of which £23,000 would be outright, and £134,000 on life tenancy terms.
- 7) Following immediate provision to the wife of £30,500, plus her own capital provision, the wife had free capital of £117,660 with the addition of a life tenancy fund of £134,000, giving her a net position of £251,660 which was sufficient to meet her needs.