Creation of trusts—marriage trusts
Creation of trusts—marriage trusts

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Creation of trusts—marriage trusts
  • The nature of a marriage settlement
  • When to consider using a marriage settlement
  • Preliminary considerations
  • Recitals
  • Structure
  • Administrative provisions
  • Conditional on marriage

The nature of a marriage settlement

A marriage settlement is a settlement made in consideration of marriage either:

  1. before the marriage or

  2. after the marriage if made in pursuance of a pre-nuptial agreement to settle

When to consider using a marriage settlement

Marriage has traditionally been an occasion for the making of a settlement. Generally, the parties to the marriage themselves come to an understanding as to what should be settled before instructing their advisers. Today, usually only one party is settling property.

Preliminary considerations

Consider:

  1. the property to be settled on either side

  2. the beneficial trusts

  3. whether after-acquired property is to be settled

  4. whether there is to be power to withdraw property from the settlement and to what extent

  5. who will pay the costs of preparing the settlement

Recitals

These explain the background and purpose of the trust and are traditionally introduced by the word 'whereas', for example:

'WHEREAS

(1) A marriage ("the Marriage") is intended shortly to be solemnised between the Settlor and the Wife (together referred to as "the Spouses")

(2) The Settlor is absolutely entitled to the investments described in the first schedule ("the Investments")

(3) Upon the treaty for the Marriage it was agreed that the Settlor should settle the Investments in the manner appearing below

(4) In part performance of the agreement