“Dear me” trust costs husband £453.6 million

In English divorce proceedings, AAZ v BBZ  [2016] EWHC 3234 Fam, the wife sought to argue that the total net marital wealth was £1.092 billion and that the entirety of the wealth was ‘matrimonial property’ therefore subject to the equal sharing principle. This was on the basis that she had contributed equally to the family, running the home and caring for their children, whilst the husband was away travelling and building up his Russian company.

The husband sought to argue, inter alia, that that principle of equal sharing could be departed from because he had made a ‘stellar contribution’ to the marital wealth through his work with the Russian company and that in any event the majority of assets were held in a discretionary trust.

The Court refused to agree that there was any justification for departing from a 50:50 division.

Regarding the assets held in the discretionary trust, the Court confirmed that the question was one of access to assets; not control over them. This was by reference to the case of Whaley v Whaley [2011] EWCA Civ 617 in which it was stated:-

"…[A] discretionary beneficiary has no proprietary interest in the fund…the court looks at resources; not just at ownership. Thus whether a beneficiary under a discretionary trust has a proprietary interest is not relevant. The resource must be one that is 'likely' to be available….What is relevant is the likelihood of the trust funds or part of it being made available to him, either by income or capital distributions. If the husband were to ask the trustees to advance him capital, would the trustees be likely to do so: Charman v Charman [2005] EWCA Civ 1606, [2006] 2 FLR 422; A v A [2007] EWHC 99 (Fam), [2007] 2 FLR 467? The question is not one of control of resources: it is one of access to them."

In 2014 and 2015, the husband had purchased a yacht (EUR 260m plus a EUR 42m re-fit), private jet (USD 52.6m) and helicopter (EUR 10m) and assigned his interest in those assets to four offshore companies. Four days before he signed his witness statement in the divorce proceedings in March 2015 he purported to assign the entire issued share capital in those three companies together with a property in Moscow to a Bermuda discretionary trust settled in October 2013.

The husband was the settlor, principal beneficiary and protector of the trust. He was also the sole director of the Cypriot trustee company. The trustee company had absolute discretion to pay out to the husband as principal beneficiary to the exclusion of the discretionary beneficiaries subject to obtaining the protector’s (i.e. the husband’s) consent.

The Court held that the trust was not “a sham in the sense of pretending to be something that it is not. It is a remarkably candid and pellucid document which makes no pretence to be anything other than what it is, namely what is colloquially called a ‘Dear me’ trust for the husband for his lifetime.”

In light of this the Court was satisfied that the answer to the key question was: yes – the trustee of the trust was likely to advance the whole or part of the trust fund to a discretionary beneficiary if he requested, either now or in the foreseeable future. Accordingly, the trust fund was included in the matrimonial assets. In any event, the Court was willing to set aside the dispositions to the trust under the ‘set aside’ provisions under the Matrimonial Causes Act 1973 and the Insolvency Act 1986 in view of his intention to avoid the claims of his wife.

In addition, in November 2012, the husband received USD 1.375 billion for his Russian company shares. It appeared that those shares had been transferred into the name of a Panamanian company, P Ltd. It was held that in light of the husband receiving no consideration for such a transfer the proceeds were held on resulting trust for him. It was further held that P Ltd was in fact the husband’s nominee and held all its assets absolutely on ‘bare’ trust for him in light of evidence that P Ltd had effectively been “an open cheque book” for him.

The Court referred to the Supreme Court case of Prest v Petrodel Resources  [2013] UKSC 34, in which it was held that the restriction on ‘piercing the corporate veil’ that could not be lifted even in financial remedy proceedings save for very limited circumstances, did not apply to circumstances in which the company was ‘bare trustee’ holding assets in its name for the husband. The Court therefore ordered the assets held by P Ltd to be transferred to the wife.

Accordingly, the Court agreed with the wife that the total matrimonial wealth was £1,092,334,626, that there was no reason to depart from a 50:50 division and that she should be entitled to a transfer of the assets she sought which resulted in her obtaining 41.5% of the total marital assets.