BJ v MJ [2011] EWHC 2708 (Fam)

WTLR Issue: April 2012 #118

BJ

V

1. MJ

2. HSBC TRUSTEES (CI) LTD (as Trustees of the MJ No. 1 Settlement) (and further as Trustees of the MJ No. 2 Settlement)

Analysis

The husband (H) and the wife (W) were both 65, having married in 1980. There was one child of the marriage (C), aged 25. The former matrimonial home was Green Farm, a substantial property set in 72 acres in Kent. Trust assets fell to be divided following divorce.

In order to mitigate tax on the floatation of his company (ABC), two Jersey trusts were created by H in 1994 (No. 1 Trust and No. 2 Trust) and a company incorporated in the British Virgin Island called Giloch Investments Ltd (Giloch). No. 1 Trust was a discrertionary trust for a class of beneficiaries comprising H, W, C, H’s siblings, any employee of ABC and the Charities Aid Foundation. H, W and C were specifically excluded from the class of beneficiaries of No. 2 Trust. The beneficiaries were grandchildren, remoter issue, the Charities Aid Foundation, siblings and siblings-in-law and employees of ABC. Giloch had two classes of shares. All ten ordinary shares were owned by No. 1 Trust. The ordinary shares were entitled to all the declared dividends of Giloch, which could include a dividend in specie of all the assets of Giloch. No. 2 Trust owned the entirety of the 1,000 deferred shares. The deferred shares were not entitled to a dividend but were entitled to the capital of Giloch on a winding up. Neither class of share could vote on the potential benefits of the other: No. 2 Trust could not vote on the question of a dividend and No. 1 Trust could not vote on a winding up. The structure had the effect of sheltering capital gains made by Giloch from tax. On the division of assets following divorce, the question was to which trust the value of Giloch should be attributed.

Held

  1. (1) While the primary focus or objective of the arrangements was to avoid capital gains tax, there was a clear collateral understanding between H and W was that the trust arrangement was established to benefit all the members of the family (para [48]). H, W and C were all excluded from benefit of No. 2 trust, but it was a key component of the overall scheme. It was the left hand to No. 1 Trust’s right hand (para [60]). Viewed as a whole, the three entities (Giloch, No. 1 Trust and No. 2 Trust) constituted a variable post-nuptial settlement. The alternative was arbitrary (para [63]).
  2. (2) W’s housing needs amounted to £700,000 and her reasonable annual income need was £65,000 (para [73]). All the assets, including all the trust property, amounted to matrimonial property and should, in principle, be shared equally but reflecting the clear arrangement made during the marriage to set up a trust ultimately to benefit C and future generations (para [79]). The assets would be divided equally (para [82]). If the trustees did not cooperate, then W’s entitlement would be dealt with by offsetting against available assets, which would require Green Farm to be sold and most of H’s pension awarded to W (para [87]).
JUDGMENT This judgment is being handed down in private on 27 October 2011. It consists of 88 paragraphs and has been signed and dated by the judge.  The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified …
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Counsel Details

Mr Jonathan Southgate (29 Bedford Row Chambers, London WC1R 4HE, tel 02074041044), instructed by Kingsley Napley (14 Kingsley Napley, St John’s Lane, Knight’s Quarter, London EC1M 4AJ, tel 020 7814 1200) appeared for the applicant. Mr Richard Castle (1KBW Chambers, London EC4Y 7DB, tel 01273 402600, e-mail clerks@1kbw.co.uk), instructed by Withers

Cases Referenced

Legislation Referenced

  • Family Procedure Rules 2010 r9.13(1-4), r9.11)
  • Matrimonial Causes Act 1859, s5
  • Matrimonial Causes Act 1973, ss24, 25, 37
  • Taxation of Capital Gains Act 1992, ss13, 86, 87