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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> T.-M. (F.J.W.) v. T.-M. (C.N.R.) [2004] IEHC 114 (22 June 2004) URL: https://www.bailii.org/ie/cases/IEHC/2004/114.html Cite as: [2004] IEHC 114, [2005] 1 IR 321 |
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THE HIGHCOURT
HC 247/04
[2000 No. 28M]
FAMILY
LAW
IN THE MATTER OF THE JUDICIAL SEPARATION ANDFAMILY
LAW REFORM ACT, 1989 AND IN THE MATTER OF THE
FAMILY
LAW ACT, 1995
BETWEEN
F.J.W.T.-M.
APPLICANT
AND
C.N.R.T.-M.
RESPONDENT
AND BY ORDER OF THECOURT
TRUSTCORP SERVICES LIMITED BEING THE TRUSTEEFOR
THE TIME BEING OF THE "REPUS TRUST"
NOTICE PARTY
JUDGMENT of Mr. JusticeWilliam
M.McKechnie
delivered
the 22nd
day
of June, 2004.
"1. An order pursuant to the provisions of s. 40 of theFamily
Law Act, 1995
directing
that the trustees
for
the time being of the repus trust be given notice of the
within
proceedings and be joined as a notice party to these proceedings.
2. An order allowing the applicant to amend the special summonsdated
6th March, 2000 to include a
claim
pursuant to the provisions of s. 9(1)(
c)
of the
Family
Law Act 1995, varying
for
the benefit of the applicant and the
dependent
members of the
family
the terms of the settlement made by the respondent".
Following
the
filing
of affidavits in support and in opposition to the relief sought, Abbott J. on 13th June, 2002 ordered that the trustees of the said trust "be joined as a notice party herein
for
the purposes of
determining
as a preliminary issue
whether
or not the repus trust
comes
within
the provisions of s. 9(1)(
c)
of the
Family
Law Act, 1995 and if so
whether
or not the trustees should be joined
further
herein." As part of an ancillary order a statement of
claim
was
served by the applicant and a
defence
filed
on behalf of the respondent. Moreover, the notice party now joined
for
the purposes of this issue, had on its behalf an affidavit sworn by one
William
Henry Kenneth Simpson. At the hearing of this issue, all parties
were
represented by solicitor and
counsel
and all made submissions in respect thereof.
This judgment, therefore, is concerned
solely
with
the point
which
Abbott J. ordered should be preliminarily
determined
pursuant to his said
direction
of the 13th June, 2002. It
does
not, as a result, purport to
deal
with
the substance itself of the said judicial separation proceedings.
(a) Barne Estate Limited is acompany
limited by shares and
was
registered in Jersey on 22nd January, 1976.
(b) By agreement inwriting
made on 5th July, 1976, between the parents of the respondent of the
first
and second parts, and this
company
of the third part, it
was
agreed that the said parents
would
sell to the
company
various heridatments incorporating the house and the 750 acres of land,
which
are known and referred to as the Barne Estate. On 12th November, 1980 this agreement
was
implemented by
way
of an Indenture of
Conveyance
and Transfer giving
full
effect to the terms and
conditions
thereof.
(c)
The purchase of the estate by the
company
![]()
was
![]()
facilitated
by the respondent, granting to it a loan in the sum of IR £553,284. In
consideration,
the
company
issued to the respondent £533,000, 0.15 per
cent
![]()
convertible
unsecured loan stock in itself.
(d)
This loan stock
was
in turn the subject matter of an original settlement made on or about the 4th April, 1977,
which
settlement is sometimes referred to as the "Jersey Settlement". These said notes
were
held on trust
for
the benefit and enjoyment of a
company
![]()
called
Redshank Investments Limited until either one or other of particular events occurred and thereafter in respect of both
capital
and income
were
held
for
the benefit of Repus Investments Limited, a
company
registered in March 1977.
(e) Redshanks Investment Limited executed adisclaimer
![]()
dated
30th September, 1987 under
which
all of its interest in the "Jersey Settlement"
was
![]()
disclaimed.
As a result Repus Investment Limited became the sole beneficiary under the settlement.
(f)
On 30th
December,
1987 the Repus Trust
was
executed,
following
![]()
which
the loan stock
was
transferred to its then trustees. In a
Deed
of Release and Indemnity
dated
9th
December,
1998, the trustees of the Repus Trust released and
discharged
the trustees of the "Jersey Settlement" and indemnified them in relation to the transfer of the trust assets.
(g) Repus Investments Limited then assigned its interest under the Jersey Settlement to the trustees of the Repus Trust to hold same upon the terms of the said trust.
(h) On 22nd June, 2000 the notice partywas
appointed sole trustee of this trust
with
the retiring trustee, by
way
of
written
transfer made on 27th June, 2000 assigning to the said notice party the said trust
fund.
![]()
(i) By letterdated
7th September, 2001 Trustcorp Services Limited
confirmed
to Messrs McCann
Fitzgerald
solicitors on behalf of the applicant that Trustcorp Limited
was
the sole trustee of the Repus Trust.
(j) By "notice ofconversion"
given on 9th May, 2002 the sole trustee, under para. 1 of the Schedule of
Conditions
to the loan stock, gave one month's notice of its intention to
convert
its entire holding of this loan note into 533,000 £1 ordinary shares in Barne Estate Limited.
(k) The result of theconversion
last mentioned is that the respondent holds 9 shares of £1 each in Barne Estates Limited
with
the notice party now holding 533,000 ordinary shares in the said
company.
There are no other shares authorised or issued other than those just mentioned.
(l) The trust property, therefore, is represented by this majority shareholding in Barne Estates Limitedwhich
in turn owns the property known as the Barne Estate.
(m) Under the instrumentcreating
the Repus Trust the settlor
was
the respondent
with
the original beneficiaries being those as set
forth
in part 2 of the Second Schedule. There
were
the
daughter
and son of the parties hereto, their spouses, their issue and the spouses of such issue. In addition, at indent 1.03 of that part of the Schedule the
following
is also stated as a beneficiary namely "the
widow
…" of the respondent, and
(n) By an Instrument of addition made 28th August, 2001, the notice party, as the sole trustee, added to theclass
of beneficiaries the respondent and the respondent's sister, one RS.
The said trust, in para. 3 under the heading "Renunciation by/and Nomination of Beneficiaries" states the following:-
"3.01 Notwithstanding anything hereinaftercontained
any of the beneficiaries shall have the power
from
time to time by instrument
delivered
to the trustees to
declare
that he is no longer to be included amongst the beneficiaries and
whether
in respect of the
whole
or any parts of the trust
fund
and as and
from
the
date
of any such
declaration
the trustees shall be absolutely prohibited
from
exercising in
favour
or
for
the benefit of the person making such
declaration
or his estate any power or
discretion
![]()
conferred
on them either as regards payment, appropriation or application of income or
capital
of the trust
fund
or of the parts thereof to
which
such
declaration
may relate provided always that:- …
'Andfinally,
the trust
which
is stated to be irrevocable, has a trust period
from
the
date
of its execution until
whichever
the
following
![]()
dates
shall occur the sooner, namely'
theday
on
which
shall expire the period of one hundred years
from
![]()
date
thereof or such earlier
date
as the trustees may
declare
to be the
date
of expiration of the trust period as is hereinafter provided."
"9-(1) On granting adecree
of judicial separation, the
court,
on application to it in that behalf by either of the spouses
concerned
or by a person on behalf of a
dependent
member of the
family,
may,
during
the lifetime of the other spouse, or, as the
case
may be, the spouse
concerned,
make a property adjustment order, that is to say, an order providing
for
one or more of the
following
matters:
(a) …
(b) …
(c)
the variation
for
the benefit of either of the spouses and of any
dependent
member of the
family
or of any or all of those persons of any ante-nuptial or post-nuptial settlement (including such a settlement made by
will
or
codicil
made on the spouses;
(d)
the extinguishment or reduction of the interest of either of the spouses under any such settlement.
(2) …
(3) …
(4) …
(5) …
(6) …
(7) …"
"16-(2)(a) the income, earningcapacity,
property and other
financial
resources
which
each of the spouses
concerned
has or is likely to have in the
foreseeable
![]()
future.
[emphasis added]."
In addition, under sub-s. (5) the court
cannot
make an order under s. 16 "unless it
would
be in the interests of justice to so
do".
Accordingly, it
can
be seen
from
a
close
examination of not only ss. 9 and 16 of the 1995 Act but also
from
the other statutory provisions under
which
a
court
is entitled or obliged to operate, that on or after the granting of a
decree
of judicial separation,
when
it is
called
upon to make such proper provision
for
the spouses and the
dependent
children,
it has
wide
ranging and extensive statutory powers in order to achieve or attain the result
which
by statute it must endeavour to so achieve.
(a) That the instrument of trust above mentioned, namely the Repus Trust is "a post-nuptial settlement"within
the meaning of s. 9(1)(
c)
of the 1995 Act. He says that this phrase should be given, not a narrow
construction
but a broad and robust one so as to
fulfil
the true intentions of the Oireachtas,
which
underline the 1995 Act. He relies upon the judgment of McGuinness J. in N.(
C)
v. N. (R) (Unreported
Circuit
![]()
Court,
9th
February,
1995)
where
the learned judge, on this point, and in the absence of Irish
case
law accepted as persuasive the English authorities on its
comparable
provision to s. 15(1)(
c)
of the 1989 Act.
(b) Byfar
his most important authority, however,
was
the
decision
in Brooks v. Brooks, a
case
in respect of
which
he opened judgments
from
all three
courts
involved, namely the High
Court,
the
Court
of Appeal and the House of Lords. This
case
is reported respectively at [1993] 4 All ER 917 (High
Court),
[1994] 4 All ER 1065 (
Court
of Appeal) and [1995] 3 All ER 257.
(c)
He asked this
court
to
follow
all such judgments and indeed also to have regard, to many of the other authorities
cited
and approved of therein. In this regard he highlighted in particular the
case
Lort-
Williams
v. Lort-
Williams
[1951] 2 All ER 241.
Continuing,
he said that if this
court
should
find
the principles therein enunciated acceptable this should, in his opinion, lead inevitably to the
conclusion
that his primary submission, namely that the trust is
within
s. 9(1)(
c)
of the 1995 Act,
was
![]()
well
justified.
(d)
He, therefore,
claimed
that the trust
was
a settlement because it involved a
disposable
property, and since it
was
![]()
created
after the parties
were
married but still
during
the
currency
of that marriage, it
was
"post" nuptial. It
was
"nuptial" in that the settlor
was
the respondent and one of the beneficiaries originally nominated by him
was
"his
widow"
![]()
which
![]()
description,
admittedly subject to a
contingency,
![]()
could
not possibly
fit
any individual other than his
wife.
Lastly,
counsel
said that it
was
not relevant that the property
was
legally held by trustees.
(a) As a matter of general law the rights of beneficiaries in principle have beencorrectly
![]()
described
as La Spes, that is having a hope of being the objects of appointment. Kenny J., in
Chaine
Nickson v. Bank of Ireland [1976] I.R. 393, at p. 396 stated that "in the
case
of a
discretionary
trust, none of the potential beneficiaries have any right to be paid
capital
or income". In Gartside and Another v. Inland Revenue
Commissioners
[1968] AC 553, the House of Lords held that the only right of an object of a
discretionary
trust (of income), is to require the trustees to
consider
![]()
from
time to time
whether
or not to apply the
whole
part or some of the income
for
his benefit and
was
not an interest in the
whole
![]()
fund
or any part of it
within
the meaning of the
Finance
Act, 1940.
Counsel
![]()
claimed
that notwithstanding its particular legislative
context,
the
case
nonetheless
was
still an authority
for
the proposition that persons
with
![]()
contingent
interests
do
not have "an interest in possession": see in particular Lord
Wilberforce
at p. 622 of the report.
(b) On thewording
of the section itself, this instrument
did
not
come
![]()
within
its provisions as it
was
not "made on the spouses". The applicant in this
context
![]()
was
not identified as a beneficiary. A potential beneficiary
was
the respondent's
widow
but, that phrase
could
not be
definitely
identified
with
his
wife
and, in any event,
was
incapable of true ascertainment until his
death.
![]()
(c)
In addition, the trust
was
not made on the respondent, at least not until the execution of the Instrument of Addition
dated
the 28th August, 2001. Therefore, the trust itself
could
not be said to be "made on the spouses" and
was,
accordingly, outside the
clear
and unambiguous
wording
of s. 9(1)(
d)
of the 1995 Act. In any event, none of the beneficiaries either those originally named or those added by the trustee,
which
after the initial nomination
was
the only individual
with
such power, had any interest in the trust or any anticipation of receiving a benefit thereunder as these
were
matters
which
![]()
were
entirely subject to the absolute
discretionary
power of the said trustee.
(d)
Mr. Nesbitt SC
felt
that the analysis of the relevant section by the author of Shatter's on
Family
Law 4th Ed. (
Dublin,
1997) at paras. 17.33
was
incorrect, in that the Author's view
was
mistaken
when
he suggested that a settlement even if only made on one spouse may still nevertheless
come
![]()
within
the section
(e)Counsel
also
claimed
that since these arrangements
were
put in place
for
the purposes of tax efficiency there
was
no "nuptial" element and, therefore,
for
this reason alone the same should be excluded
from
the provision of the relevant section.
(f)
A
further
argument
was
that since the Repus Trust predated the enactment of both s. 9 of the 1995 Act and its predecessor s. 15 of the 1989 Act, these provisions should not be applied to such an instrument as to
do
so,
would
in effect be the same as retrospectively applying legislation
which
by its terms
was
not justified. See O'H. v. O'H. [1990] 2 I.R. 558 and
Chestvale
Properties Ltd. v. Glackin [1992] I.L.R.M. 221.
(g) Andfinally,
on this aspect of the
case,
Mr. Nesbitt S.
C.
relied upon the
decision
of McGuinness J., in J.
D.
v
D.D.
[1997] 3 I.R. 64,
which
![]()
from
his
client's
point of view
was
a very significant judgment indeed. In that
case
![]()
when
![]()
considering
both section 15 (1)(
c)
of the 1989 Act and s. 9 (1) (
c)
of the 1995 Act, the learned Judge is said to have effectively
decided,
![]()
following
Howard v. Howard [1945] 1 All E.R. 91, that
for
an instrument to
come
![]()
within
the ambit of these provisions the interest in question must be one in possession or reversion but not
further
remote than either.
(h) Inconclusion,
therefore, it
was
submitted on behalf of the trustee of the Repus Trust, that the scheme in question
did
not
come
![]()
within
the relevant statutory provision and accordingly, on a point of principle, s. 9 (1)(
c)
![]()
was
not available
for
this
courts
![]()
consideration
even
when
exercising its power under s. 16 of the said 1995 Act.
"(v) Thecourt
after a
final
![]()
decree
of nullity of marriage or
dissolution
of marriage may inquire into the existence of anti-nuptial or post-nuptial settlements made on the parties
whose
marriage is the subject of the
decree,
and may make such orders
with
reference to the application of the
whole
or a portion of the property settled either
for
the benefit of the
children
of the marriage or of their respective parents as the
court
shall
deem
![]()
fit".
This sectionwas
in turn replaced by s. 192 of the Supreme
Court
of Judicature Act, 1925
which
![]()
for
all practical purposes made no
change
to the
wording
of the section and neither
did
it
further
re-enactment in the Matrimonial
Causes
Act, 1950. The most recent statutory basis
for
this provision appears to be s. 24 of the Matrimonial
Causes
Act, 1973
where
at sub-s. (1)(
c)
it is provided, that the
court
![]()
can
make "an order varying
for
the benefit of the parties to the marriage … or either … of them any anti-nuptial or post-nuptial settlement … made on the parties to the marriage. …".
The jurisdiction to make this type of order was
grounded upon inter alia a
decree
of judicial separation in the 1857 Act but not so in the 1859, 1925 or 1950 Acts. This power
was
again extended to judicial separation in the 1973 Act but nothing turns on its absence in the intervening period. As
can,
therefore, be seen the
court
in England has power to vary
for
the benefit "of the parties" to the marriage any "post-nuptial settlement"
which
was
made "on the parties" to the marriage.
"The terms 'ante-nuptial and post-nuptial settlements' are used in a sense muchwider
than that usually given to them by
conveyancers,
the essential
condition
being that the benefit must be
conferred
on either or both of the spouses in the
character
of spouse or spouses. It is immaterial
whether
the benefit
comes
![]()
from
one of the spouses or
from
a third person, provided that this
condition
is satisfied … a separation agreement … Similarly a bond by
which
a
wife
undertakes to pay an annuity to her husband and a policy of life assurance taken out by a husband,
for
the benefit of his
wife
have been held to be post-nuptial settlements". In Jackson's Matrimonial
Finance
and Taxation (5th ed. 1992) at pp. 258-259 the authors of that textbook have summarised the relevant authorities as stating that:-
"Thewords
'ante-nuptial settlement' and 'post-nuptial settlement' are to be given a liberal
construction
![]()
wholly
![]()
different
![]()
from
the more restricted meaning that
would
be given to them in a
conveyancing
instrument or in other
contexts.
The
form
of the settlement
does
not matter: it may be a settelment in the strictest sense of the term, it may be a
covenant
to pay by one spouse to the other, or by a third person to a spouse. One has to ask the question: Is the settlement upon the husband in the
character
of husband or upon the
wife
in the
character
of
wife,
or upon both in the
character
of husband and
wife?
![]()
What
matters is that the settlement should provide
for
the
financial
benefit of one or other or both of the spouses as spouses and
with
reference to their married state …"
These quotations from
both Bromley and Jackson have attracted judicial approval.
17. In this jurisdictionDuncan
and Scully "Marriage Breakdown in Ireland" (
Dublin,
1990) at p. 335 says as
follows:-
"If English authority isfollowed
regarding an order to vary an anti or post-nuptial settlement the
concept
of such a settlement is likely to be broadly
defined.
Per Hill J. in Prinsep v. Prinsep [1927] P. 225:
"The particularform
of it
does
not matter. It may be a settlement in the strictest sense of the term, it may be a
covenant
to pay by one spouse to the other, or by a third person to a spouse.
What
![]()
does
matter is that it should provide
for
the
financial
benefit of one or other or both of the spouses as spouses and
with
reference to their married state. "
Shatter's, Family
Law 4th Ed. , (
Dublin,
1997) at paras. 17.33 and 17.34 very much echoes these views and
when
discussing
the
courts
power under both s. 15 of the 1989 Act and s. 9 of the 1995 Act, goes much
further
and suggests that the same is very extensive indeed.
It would,
therefore, appear to be the
case
that provided the benefit is
conferred
on either spouse in the
character
of spouse and
with
reference to their married status, then the instrument in question may very
well
be a post-nuptial settlement.
"Ido
not think
we
get any assistance
from
the Settled Land Act or Bankruptcy Act …
What
![]()
we
have to
do
is to
consider
the meaning of the
word
in these particular sections.
We
have had numerous authorities
cited
to us … and in my judgment these authorities establish that
where
a husband has made a provision
for
his
wife,
or a
wife
![]()
for
her husband, in the nature of periodical payments, that amounts to a settlement
within
the meaning of the sections. That may appear to be a very liberal
construction
of the sections, but I think that it is no more liberal a
construction
than should be given to them having regard to the obvious purposes
for
![]()
which
they
were
enacted by the Legislature."
Two years later in Prinsep v. Prinsep [1927] P. 225 Hill J. expanded somewhat upon this view when
he said:-
"Is it upon the husband in thecharacter
of husband or in the
wife
in the
character
of
wife,
or upon both in the
character
of husband and
wife?
If it is, it is a settlement on the parties
within
the meaning of the section. The particular
form
of it
does
not matter".
Several other cases,
all largely supportive of the above approach, intervened between Prinsep v. Prinsep and Lort-
Williams
v. Lort-
Williams,
supra.
"Counsel
![]()
for
the husband admits that the
words
of s. 25 of the Act of 1950 have been given a
wide
meaning, but he relies that the interest of the
wife
![]()
was
![]()
contingent
in that (i) she has to survive the husband (ii) she has to survive him as his
widow,
and (iii) if there
were
![]()
children
(the position might be obscure if there
were
not), she might take no interest at all if he appointed the
whole
![]()
fund
to the
children.
I
do
not think that is sufficient to take the policy out of the meaning of 'settlement' in this section."
Denning
L.J.
continued:-
"Theword
'settlement' in s. 25 … is not used in the
conveyancing
sense. It includes any provision made by a husband
for
the
future
benefit of his
wife,
if it proceeds on the
footing
of the then existing marriage. It
does
not
cease
to be a settlement on her because the provision is, not absolute, but only
contingent,
nor
does
it
cease
to be a settlement on her because it may in its terms also be applicable
for
the benefit of a
wife
by a subsequent marriage."
"The authorities show that thecourt
treated the jurisdiction
from
the outset as a
wide
one. It
was
not restricted to interests that had vested in possession:
contingent,
as
well
as purely
discretionary,
interests
were
included … Nor
was
the power limited to variation of the rights of the respondent spouse: third party rights
could
be interfered
with".
![]()
He accepted the principles set out in Lort-Williams
and
dealt
with
the points of
distinction
as
follows:-
He said at p. 1075 of the report:-
"There are acknowledgeddifferences
between that
case
and the present. The policy
with
![]()
which
the
court
![]()
was
there
concerned
![]()
was
effected under s. 11 of the Act of 1882 and
was
therefore by
definition
a policy
whose
![]()
whole
raison
d'etre
![]()
was
to benefit a
wife
and/or
children.
Here the primary intention of the insurance is to benefit the husband, to
which
the rule 1(e) option of part surrender in
favour
of a
wife
is very much subsidiary. There the transaction
was
one of
conventional
life insurance. Here it is
complicated
by the
fact
that although the husband is the assured – in the sense that the benefits of the policy are related to his
death
or retirement – the policy itself is vested in trustees
who
have powers of their own to
define
beneficial entitlement,
for
example in regard to
determining
![]()
who
is to be treated as a '
financial
![]()
dependent'
![]()
for
the purposes of the rule 1(e) option. There the
whole
proceeds of the policy
devolved
on the beneficiaries. Here the surplus benefits of the policy in excess of the Inland Revenue maxima belong, in the
first
instance at least, to a separate entity in the
form
of the
company.
![]()
None of these, however, aredifferences
![]()
which,
in my judgment, affect the principle. It is the husband
who
is entitled to the benefits of the policy up to the
ceiling
of the Inland Revenue maxima, and it is he alone
who
![]()
within
those limits have the power to surrender part of those benefits in
favour
of the spouse and/or other
financial
![]()
dependent.
It is that power
which
gives the scheme to the
character
of a settlement, and it is the inclusion of a spouse
within
the objects
which
gives the settlement its nuptial element. It makes no
difference
under the rule 1(e) option the spouse has a
contingent
interest only. I
would
hold, in agreement
with
the judge and
district
judge, that the principle of Lort-
Williams
v. Lort-
Williams
[1951] P. 395 applies to this
case
by analogy. The scheme amounted to a post nuptial settlement".
On further
appeal, their lordships in the House upheld the
decisions
of the lower
court
and
found
that the pension
fund
in question
was
a settlement
within
the meaning of s. 24(1)(
c)
of the 1973 Act. See the speech of Lord Nicholls,
commencing
at the " The present State of the Law"
which
appears at p. 262 of the report.
"The power of thecourt
…
was
replaced by the Supreme
Court
of Judicature (
Consolidation)
Act, 1925, s. 192. That refers in terms to nuptial settlements 'on the parties'. I am inclined to think that this refers to settlements under
which
late spouses – or one of them are
cestui
que trustent and, therefore, entitled to
call
upon the trustees to account to them or him or her. A settlement by the terms of
which
the trustees may at their
discretion
use the
capital
or income
for
the benefit of persons they may select
would
not seem to be such a settlement merely because the spouse or spouses is or are
within
the
class
of possible beneficiaries
whom
the trustees in their
discretion
are entitled to select".
Largely, if not completely,
based on this quotation McGuinness J. then
concluded:
"In the presentcase
neither the
D.
trust,
with
its variety of beneficiaries, nor the L. Trust,
which
gives the
wife's
mother a power of appointment among an even
wider
variety of beneficiaries,
would,
it seems to me,
fall
to be
dealt
![]()
with
under s. 9 sub-s. (1)(
c)
of the
Family
Law Act, 1995, and an order should not be made either
directly
affecting either trust or putting pressure on the trustees in the exercise of their
discretion".
![]()
It is this Irish authority which
is heavily relied upon in argument against s. 9(1)(
c)
capturing
the Repus Trust.
"However, it seems to me that I should not entirely ignore the existence of these trusts and thecomparative
likelihood of either spouse to benefit
from
them. Section 16 sub-s. (2)(a) of the
Family
Law Act, 1995
directs
the
court,
in
deciding
![]()
whether
to make a periodical or lump sum maintenance order, to have regard to 'other
financial
resources
which
each of the spouses
concerned
has or is likely to have
for
the
foreseeable
![]()
future'.
In looking at this '
foreseeable
![]()
future'
I
feel
that I should bear in mind that the husband is a beneficiary of a very
considerable
![]()
family
trust and one
which
has in the past made sizeable
capital
payments to his only sister to enable her to acquire property."
In other words,
apart
from
any order
which
the trial judge may
directly
make under s. 9(1)(
c)
in relation to this trust, the same nevertheless may be relevant under s. 16(2)(a) of the 1995 Act. Or apart
from
any of these suggestions, he may have an entirely
different
approach to the trust in question. See
for
example how O'Sullivan J.,
dealt
with
the 22 acre site in
C.F.
v. J.
D.F.
(Unreported, High
Court,
O'Sullivan J., 16th May, 2002).
Whatever
he might
do,
I am quite satisfied that I should not exclude in principle this trust by virtue of its
discretionary
nature and given my view on the applicability of s. 9(1)(
c),
I should not at this preliminary stage exclude
from
the trial judge's
consideration
of the assets and material available, this said trust.