Trusts within financial proceedings—enforcement
Produced in partnership with Rebecca Dziobon of Penningtons Manches Cooper
Trusts within financial proceedings—enforcement

The following Family practice note produced in partnership with Rebecca Dziobon of Penningtons Manches Cooper provides comprehensive and up to date legal information covering:

  • Trusts within financial proceedings—enforcement
  • When will enforcement against trustees be required?
  • Enforcement on variation of a nuptial settlement—offshore trust
  • Comity
  • Exclusive jurisdiction clauses
  • Enforcing a finding of sham/invalidity
  • Enforcing judicious encouragement orders where assets of trust deemed a resource
  • Trustee submission and enforcement
  • Protective legislation

Trusts within financial proceedings—enforcement

The enforceability of any financial order should be considered at the outset of a case involving trusts, as enforcement considerations may influence the case from the framing of the application onwards. A cost-benefit analysis should be undertaken, particularly in cases involving offshore trusts/assets. Difficulties with enforcement are less likely to arise where the trust is governed by English law and both the trustees and the assets are in England/Wales.

An applicant on a variation of a nuptial settlement application may apply under Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 9.26B to join the trustees as parties. See also Practice Notes: Joinder of third parties in financial proceedings and Trusts in financial proceedings—evidence and procedure.

Questions regarding enforceability are likely to arise where one or more the following elements are present:

  1. the trust is offshore

  2. the trust is governed by the law of an offshore jurisdiction

  3. the trustees are offshore

  4. the assets of the trusts are also located offshore

Enforcement may be even more difficult if the offshore jurisdiction has enacted protective legislation to protect its trusts, see: Enforcing a variation of a nuptial settlement order against an offshore trust.

Implementation may be less problematic if trust assets to satisfy the order are located in this jurisdiction. See C v C (variation of post-nuptial settlement: company shares), a case involving a Cayman Islands trust, but

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