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Case study 1 Divorce – Financial provision – Ancillary relief – Discretionary trusts – Husband’s father settling discretionary trust naming husband and siblings as beneficiaries – Father creating trust before marriage of husband and wife – Trustees subsequently creating second trust for benefit of grandchildren of husband’s father – Judge finding trust assets likely to be made available to husband and including them as part of his resources – Husband appealing – Whether judge’s order for ancillary relief putting improper pressure on trustees – Whether judge erring in taking second trust into account when husband not named as beneficiary – Matrimonial Causes Act 1973, s 25(2)(a). Held – It followed from s 25(2)(a) of the Matrimonial Causes Act 1973, which required the court, in exercising its powers of property adjustment, to have regard to the income, earning capacity, property and other financial resources which each of the parties to the marriage had or was likely to have  2 FCR 323 at 325 in the near future, that the question which fell to be addressed in the instant case was whether the trustee would be likely to advance capital to the husband immediately or in the foreseeable future. It was clear that the judge had considered and found that the trustees/protectors could be expected to comply absolutely with the husband’s requests. That applied to both the Farah Trust and the Yearling Trust, notwithstanding that, in the case of the latter, the advancement of capital required the additional step of the husband first being added as a beneficiary. The judge’s various findings amounted to a conclusion, albeit variously expressed at intervals throughout the judgment as she dealt with particular issues that had arisen, that the trustees were likely to advance funds from the trust immediately or in the foreseeable future if so requested by the husband. In those circumstances, the judge had had no choice but to treat the trust assets as part of the husband’s resources for the purposes of s 25(2)(a) of the 1973 Act. It could not be said that the judge’s order placed undue pressure on the trustees, particularly in the light of cl 6(D), which empowered them to ignore the interests of any interested person whilst exercising their powers in favour of another. It had not been shown that the judge had fallen into error in determining the division of assets as between the parties nor in her valuation of the assets or the calculation of the total award to the wife. Accordingly, the appeal would be dismissed (see –, , , , , , below); Charman v Charman  EWCA Civ 1606, (2005) 9 ITELR 43 applied and Thomas v Thomas  2 FCR 544 considered. Per Black LJ. Though there can be occasion in ancillary relief proceedings for the court to depart from strict property rights and to look at more flexible concepts such as earning capacity, needs and resources, the court also requires sufficient concrete information about the legal framework within which the parties’ various assets exist to enable a proper view to be formed as to issues such as reliability, security of tenure, profitability and control of any relevant company and valuation of its shares, tax, powers and duties under any trusts and the likelihood of resources being made available from a trust (see , below). Case study 2 Divorce – Financial provision – Ancillary relief – Non-matrimonial property – Wife inheriting shares prior to relationship with value of £57.4m at time of ancillary relief hearing – Judge awarding husband lump sum payment of £5m based on assessment of his needs – Husband contending entitlement to award of £18m on proper application of sharing principle – Consideration of what constitutes special contribution – Consideration of application of sharing principle and needs assessment to non-matrimonial property. Held – To find that on top of the efforts of equal value made by each party in the home the wife had made a financial contribution of great importance was not to discriminate between the parties in any unacceptable way: on the contrary, it correctly recognised a substantive difference. There was nothing in the facts of the instant case which logically justified a conclusion that, as the long marriage proceeded, there was a diminution in the importance of  2 FCR 597 at 598 the source of the parties’ entire wealth, at all times ring-fenced by share certificates in the wife’s sole name which to a large extent were just kept safely and left to reproduce themselves and grow in value. A special contribution arose in circumstances in which a spouse’s contribution, direct or indirect, to the creation of matrimonial property was so extraordinary as to dictate a departure within the sharing principle from the ordinary consequence of its equal division. In Charman v Charman, the court’s reference to the unlikelihood of departure from equality further than to 66.6%–33.3% was of ‘division of matrimonial property’. By contrast, although non-matrimonial property also fell within the sharing principle, equal division was not the ordinary consequence of its application. The consequences of the application to non-matrimonial property of the other two principles of need and of compensation were likely to be very different; but the ordinary consequence of the application to it of the sharing principle was extensive departure from equal division. The judge’s award to the husband of 9.3% of the parties’ assets was not appealably disproportionate and the appeal would be dismissed (see , , –, –, below); Charman v Charman  2 FCR 217 explained; White v White  3 FCR 555 and Miller v Miller, McFarlane v McFarlane  2 FCR 213 considered.