W (A M) v W (S)

• Jurisdiction: Ireland
• Judge: Mr. Justice Abbott
• Judgment Date: 18 April 2008
• Neutral Citation: [2008] IEHC 452
• Court: High Court
• Date: 18 April 2008

[2008] IEHC 452

THE HIGH COURT

[No. 40 M/2005]

W (A M) v W (S)

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

A.M.W.

APPLICANT

AND

S.W.

RESPONDENT

FAMILY LAW ACT 1995 S16(2)(A)

FAMILY LAW ACT 1995 S9(1)(C)

FAMILY LAW ACT 1995 S9

CHARALAMBOUS v CHARALAMBOUS 2004 2 FLR 1093

CHARMAN v CHARMAN 2006 1 WLR 1053

THACKER v THACKER 2007 EWHC 1378 (FAM) (TRANSCRIPT NOT AVAILABLE)

STATE OF NORWAY'S APPLICATION, IN RE 1987 QB 433 1986 3 WLR 452

LONDONDERRY'S SETTLEMENT, IN RE 1965 CH 918 1965 2 WLR 229 1964 3 AER 855

MURPHY v MURPHY 1999 1 WLR 282 1998 3 AER 1

FAMILY LAW ACT 1995 S16

FAMILY LAW ACT 1995 S16(5)

FAMILY LAW ACT 1995 S16(1)

FAMILY PROCEEDINGS RULES 1991 SI 1247/1991 (UK)

EVIDENCE (PROCEEDINGS IN OTHER JURISDICTIONS) ACT 1975 S2(4) (UK)

D v D (PRODUCTION APPOINTMENT) 1995 2 FLR 497

CONSTITUTION ART 41.3.2

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.1.2

FAMILY LAW

Documents

Disclosure - Trusts - Beneficiaries - Potential interest of children of marriage - Post-nuptial settlements - Whether sham - Whether assets to be regarded as beneficial property of settlor - Whether assets to be treated as financial resources of spouse - Power of court to vary ante-nuptial or post-nuptial settlement - Obligation of court to ensure provision for each spouse and dependent family members - Obligations of trustees to provide information - Whether request for disclosure fishing expedition - Ordinary obligations of respondent as party to proceedings to disclose assets - Quasi-inquisitorial role of court - Constitutional position of family - Involvement of respondent as settlor and expert in development of trusts - Procedural difficulties related to third party discovery - Charalambous v Charalambous [2004] 2 FLR 1093, Charman v Charman [2006] WLR 1054, Re Norway's Application [1987] QB 433, Re Londonderry's Settlement [1965] Ch 918, Murphy v Murphy [1999] 1 WLR 282 and D v D (Production Appointment) [1995] 2 FLR 497 considered - Constitution of Ireland 1937, art 41.3.2 - Judicial Separation and Family Law Act 1989 (No 6) - Family Law Act 1995 (No 26), s 9 & 16 - Rules of the Superior Courts 1986 (SI 15/1986) - Disclosure ordered (2005/40M - Abbot J - 18/4/2008) [2008] IEHC 452

W(M A) v W(S)

1 JUDGMENT delivered by Mr. Justice Abbott on the 18th day of April, 2008

2 1. This hearing was in respect of two motions, one on behalf of the applicant dated the 4 ^th May, 2006, and the other on behalf of the respondent dated the 6 ^th July, 2006, each seeking in broad terms disclosure of information relating to trusts which each party in various ways alleged should be taken into consideration in the above entitled judicial separation proceedings. There was further notice of motion on behalf of the respondent dated the 12 ^th December, 2007, seeking an order granting liberty for the trustees of a certain trust (referred to herein as the "M. Trust") to be joined as notice parties to the within proceedings. The respondent did not proceed with that notice of motion and it may be adjourned with liberty to re-enter.

2. The Marriage

3 2 2.1 The applicant and the respondent were married to one another on the 12 ^th March, 1988, within the jurisdiction of this Court. There were three children born to the marriage on the 30 ^th April, 1989, 6 ^th April, 1992 and 17 ^th July, 1999. While the applicant was in employment prior to and in the early years of the marriage, it may be said that in recent years the applicant was the homemaker and the respondent was the provider, in terms of a rule of thumb emphasis of roles. Unhappy differences in the marriage came to a head in 2003 and it is alleged that in or about August, 2003, the respondent left the family home and returned sometime later to collect his belongings. Ultimately after this time the respondent called and took with him a significant number of boxes (hereinafter referred to as "the boxes") from the family home which may or may not be relevant to the matters at issue in this hearing.

4 3 2.2 The applicant initiated proceedings in this Court seeking judicial separation and ancillary relief pursuant to the Judicial Separation and the Family Law Act 1995 by special summons dated the 8 ^th June, 2005.

3. Trusts on the Applicant's side.

5 2 3.1 As appears from the pleadings and the affidavits, it is alleged that the applicant's father was, and is, a very wealthy businessman who assisted the parties financially, and in the respondent's case - professionally, over the years. The respondent is a professional person and while he did not act as such for the applicant's father in relation to the setting up of a trust referred to as the M. Trust, nevertheless discussed with the applicant's father the manner of setting up this trust, and through informal conversation with the applicant's father became aware of how very substantial assets became invested in the M. Trust through an offshore company owned by the trust. There were also two trusts set up by the applicant's father referred to as No. 1 Trust and No. 2 Trust. The No. 1 and No. 2 Trusts are not very significant financially, but they are significant insofar as the applicant, in her affidavits, has been in a position to disclose very substantially the nature of these trusts and ancillary documents such as to give, at this stage, a good outline understanding of the trusts. However, the respondent complains that this forthright approach has been absent in respect of the M. Trust. From the outset of the hearing counsel on behalf of the applicant stated that a letter dated 13 ^th December, 2007, from solicitors for the applicant's father sets out the position in relation to the M. Trust as follows:-

"Thank you for your letter of the 5 ^th December. I note that in July 2006 I advised [solicitor for S.W.] that my client was willing to make reasonable disclosure in respect of any trusts in which [applicant] is identified as a potential beneficiary and that offer still remains. In this regard I enclose a copy of my letter of the 6 ^th July, 2006, to E.D. In relation to the [M.] Trust I have been advised that the entire value of the Trust Fund has been distributed to my client. For the avoidance of doubt I confirm that no provision was made for [applicant]."

6 3 3.2 Other correspondence was exhibited indicating a marked reluctance on the part of the applicant's father to furnish any further information, highlighted by the pejorative nature of one replying letter, but this attitude softened somewhat insofar as further documentation including a letter of wishes of the applicant's father in relation to the M. Trust emerged.

4. Trusts on the Respondent's side

7 2 4.1 There are two family settlements which for the purpose of this hearing I should categorise as being on the respondent's side. Firstly, the C. Settlement in respect of which counsel for the applicant has argued that as yet nothing is known about the beneficiaries thereof in terms of appointment status, save that the ultimate beneficiary will be the Red Cross of Geneva. Against that counsel for the respondent countered that a letter of wishes in respect of the C. Settlement has been disclosed in the proceedings which shows inter alia that the wishes of the settlor are that the beneficiaries of the settlement are to be the children of the marriage. The other trust on the respondent's side was set up by the respondent as settlor and initially was called the EMB Trust and in its current form is called the K. Trust. It is important to set out the salient features of the setting up and the development of this trust in a little more detail than the other trusts mentioned in this case, as these details formed a structure in which the issues could be decided relating to disclosure of that trust, and also in relation to the issues surrounding the other trusts in the case, (even though the details thereof might vary from trust to trust.

8 3 4.2 The EMB settlement is stated to be made on the 25th July, 1997, between the respondent (thereinafter called "The Settlor") and A.A.T.C. (Isle of Man) (thereinafter called "The Trustees") and recites as follows:

"Whereas the Settlor wishing to make such irrevocable Settlement as is hereinafter contained has had transferred or delivered to the Trustees or otherwise placed under their control the property specified in the Second Schedule hereto".

9 Clause 1 (a)(i) provides as follows:

10 "[T]he discretionary Objects" means all and any of the persons specified in the Fourth Schedule hereto and such other persons as are added to the class of Discretionary Objects in the exercise of the power conferred upon the Trustees by Clause 10 hereof…

11 Clause 1 (a)(v) provides:

12 "Excluded Persons" means the Settlor any person for the time being the spouse of the Settlor (including a spouse taken after the date hereof) and any person declared an Excluded Person pursuant to Clause 9 hereof".

13 4 4.3 Under the heading "Powers of Exclusion" in Clause 9 it is provided:-

" THE Trustees may by declaration in writing made at any time or times during the Trust period declare that the person or persons or members of a class of persons named or specified (whether or not ascertained) in such declaration who is are would or might but for this Clause be or become a Discretionary Object or Objects or be otherwise able to benefit hereunder as the case might be:-"

(i) shall be wholly or partially excluded from future benefit hereunder; or

(ii) shall cease to be a Discretionary Object or Discretionary Objects, or

(iii) shall be an Excluded Person or Persons.

14 and any such declaration may be irrevocable or revocable during the Trust Period and shall have effect from the date specified in the said declaration provided that this...