We often read in the papers about successful surrogacy arrangements involving a surrogate mother who lives outside the UK. That is because it is difficult for intended parents to find a surrogate mother in the UK. However using a foreign-based surrogate mother through an international surrogacy arrangement brings other legal and practical challenges. International surrogacy and the law Whether or not a child who is born to a surrogate mother is linked genetically to the intended mother or father (or both), under UK law, the surrogate mother who bears the child is the legal mother. Many intended parents assume that the rules are different if they use a surrogate mother who is based in a foreign country. They are not. Even if the country where the surrogate mother nationality recognises the intended parents as the legal parents of the child, UK children and immigration law does not. That can make international surrogacy arrangements and immigration very complicated.   International surrogacy arrangements In the UK surrogacy arrangements are not enforceable as a contract between the surrogate mother and the intended parents. Different laws apply to surrogacy agreements in other countries. However, even if a surrogacy agreement is legally enforceable in the country in which the surrogate mother is a national, the intended parents cannot bring court proceedings to enforce the surrogacy agreement in the UK.   International surrogacy and immigration     If a child is born to a surrogate mother who is not a British citizen then complex surrogacy and immigration law will determine the nationality of the child. Those rules will also determine if and how the child can enter the UK. The child’s nationality and immigration status may depend on whether or not the intended father is genetically linked to the child and, furthermore, whether the surrogate mother is legally married or not. If you are contemplating international surrogacy, it is vital that you take expert legal advice from children and surrogacy law solicitors as well as advice from immigration law experts. [related_posts] International surrogacy and parental orders Under UK children and surrogacy law, a child born to a surrogate mother is the legal child of the surrogate mother. Intended parents can apply to the family court for a parental order. This order extinguishes the legal rights of the surrogate mother and makes the intended parents the child’s legal parents. The intended parents then have parental responsibility for the child. In order for a parental order to be made various conditions have to be met such as: There must be a genetic link between the child and at least one of the intended parents; and The surrogate mother must consent to the parental order no earlier than 6 weeks after the birth of the child. If you are considering an international surrogacy arrangement, it is vital that you take advice on the evidence required of the surrogate mother’s consent to the making of the parental order. Failure to secure adequate evidence of the surrogate mother’s consent could create problems with the parental order application.   International surrogacy and Evolve Family Law Evolve Family Law is a niche firm of family law solicitors.  Evolve Family Law has substantial expertise in children and surrogacy law. If you are contemplating a surrogacy arrangement, either in the UK or abroad, please contact us for advice on your options and for information on applying for a parental order.

The case of three siblings who ended up in court over their late mother’s Will emphasises the importance of professional Will writing and highlights the challenges involved in claims against estates and contesting Wills. The Burgess family featured in the papers as two of the three siblings argued that their late mother’s £1.5 million estate should not be divided equally between them after Probate . Two sisters said that their brother, a wealthy former British Airways pilot, should get less than them as they were not as wealthy as their brother. A reading of the Burgess case will help most people realise just how important it is to get professional legal advice when drawing up a Will. It is especially important to do so if you know that there is a chance that the Will could be challenged and a claim made against the estate. The Burgess case Chris Burgess was initially left £300,000 of his parents' £1.5 million estate in their mirror Wills. The couple made Wills leaving the lion’s share of their money to their two daughters because Jim and Freda Burgess thought their two daughters needed the money more than their son did. After former solicitor and judge, Jim Burgess died, leaving his estate to his wife, Freda, she decided to change her Will to share the estate equally between her three children. When Freda died in 2016, aged 90, her Will left the estate equally between the three siblings. This meant that each child would get about £500,000 rather than the son, Chris getting £300,000 and the two daughters £600,000 each. The daughters challenged their late mother’s last Will and the family ended up in court. Grounds for contesting a Will To contest a Will you have to be able to prove that there are valid grounds to do so, for example: The Will maker lacked testamentary capacity; or The Will was not executed properly; or The Will maker was unduly influenced to make the Will; or The Will was fraudulent or forged. In the case of Freda Burgess it was alleged that: At age 90 , Freda was too old and vulnerable to change her earlier Will leaving just £300,000 to her son, rather than an equal share of the estate; The Will was not properly executed, as one of the witnesses had not seen Mrs Burgess sign the new Will. The High Court judge decided that Freda Burgess’s last Will was not valid because it had not been executed properly. However, the judge concluded that Freda Burgess had known her own mind at age 90 when she decided to leave her estate equally to her three children.  That meant the shredding of the first Will (that left the son about £300,000) was valid and the first Will was therefore revoked. What is more, as the second Will had not been executed properly Freda Burgess had not left a valid Will in existence at the time of her death. Without a valid Will in place, Freda Burgess’s estate will pass in accordance with intestacy rules, meaning that the estate will pass equally to the three children. The court result and the amount received by the three siblings would have been different if the court had ruled that Freda Burgess lacked capacity to revoke her old Will and make a new one. [related_posts] The lessons from the Burgess case What can be learnt from the Burgess case? The Burgess case emphasises a few things: It is vital that a Will is executed properly. A solicitor will not only draw up a Will for you but will check that it is executed properly; If the Will maker is elderly or frail it can be sensible to get a doctor to confirm that the Will maker has testamentary capacity to make a Will; If a Will maker is elderly or vulnerable it is important that they get independent legal advice on their Will; If a Will maker is leaving a Will that they think may be challenged it is important that they explain why that they are making the provisions in the Will. The explanation does not need to be in the Will but can be contained in a separate private letter to the executor of the Will.   For legal help with claims against estates, challenging a Will or estate planning please contact us  

How do you value company shares to reach a financial settlement?  Our Manchester divorce solicitors have to answer this question when looking at divorce and the family business and negotiating financial settlements. If a husband and wife cannot agree on the value of company shares, the husband or wife can start financial court proceedings. In the financial court case, a judge can order the valuation of shares by an independent forensic accountant.  Ultimately, it is for the family judge to decide on what is a fair value of any company shares and to make a financial court order. A fair financial settlement The family court objective is to reach a fair financial settlement. What amounts to a ‘’fair financial settlement’’ is subjective. A husband's opinion on a fair financial settlement may vary wildly to that of his estranged wife. When deciding how to split family assets the court applies statutory factors, such as the length of the marriage and the husband and wife's ages, to reach what the court considers a fair result.   Although the court looks at statutory criteria when making a financial court order, the judge can exercise discretion. That discretion partially explains the number of appeals against financial court orders. The other reason spouses are often disgruntled with a financial court order is that they do not perceive the financial settlement to be fair as fairness is ‘’in the eye of the holder’’. Valuing company shares to get a fair financial settlement The fairness of the financial settlement depends on assets, such as property or company shares, being valued correctly. To add to the complexity of valuing company shares, frequently our divorce solicitors need to ask experts to value the company shares at different dates. For example, a forensic accountant may be asked to value company shares at: The date of separation; and The date of cohabitation or marriage; and The date the company shares were transferred of gifted to a husband or wife. The Martin case and valuing company shares The Martin case shows just how complicated it can be to value shares in a non-listed company. Last year a judge had to decide how to split the Martin family fortune of roughly 182 million. Mr Justice Mostyn decided Mrs Martin should get about £73 million of the family assets. That is about forty percent of the family assets. After a long marriage, Manchester divorce solicitors start from the premise that family assets should be divided equally on divorce. Equality can be departed from if there are good reasons to do so. Mrs Martin therefore thought that the financial court order was unfair and that she should get more. Mr Martin was also of the view that the financial settlement was unfair. Accordingly, Mrs Martin appealed to the court of appeal and Mr Martin cross-appealed. The facts of the Martin case Mr and Mrs Martin had been married for 29 years and had two adult children. This was a long marriage. At the time of their marriage, Mr Martin owned shares in the family company and Mrs Martin was a shop floor employee.  There were no prenuptial agreements in place. If there had been a prenuptial agreement this could have potentially avoided the contested court proceedings or narrowed the issues. Valuing a company in divorce and financial settlement proceedings The appeal centred on the valuation of the shares in the company, Dextra Group PLC, at the time that Mr and Mrs Martin began to cohabit. At the time the couple began to live together the company was not listed. An expert was instructed to prepare a report on the value of the shares. Mrs Martin valued the shares at 1.6 million at the date of cohabitation. The judge decided the shares were worth 44 million. The valuation of the company shares at the date of cohabitation was key to deciding if Mrs Martin’s 73 million was a fair financial settlement. That is because Mr Martin said the value of the company shares he owned at the date of cohabitation should be ‘’ring-fenced’’ and not shared with Mrs Martin. The Martin court of appeal decision The court of appeal decided to refuse Mrs Martin’s request for more than 73 million of assets. The court of appeal concluded that the first judge had reached a fair decision. Their view was that a judge is entitled to take a view on the value of the assets and wealth that a husband or wife brings into a marriage. In other words, the court of appeal rejected the idea that judges should just focus on the accountant’s figure for the value of the company shares at the time of cohabitation. The court said that a financial settlement '’ involves a holistic, necessarily retrospective, appraisal of all the facts and then the application of a subjective conception of fairness, overlaid by a legal analysis.’' The court of appeal has reconfirmed to divorce solicitors that the financial settlement fairness test is subjective. That subjective approach makes it all the more important for spouses to take early specialist legal advice from divorce  solicitors who are experienced in divorces involving family businesses and in assessing what a court is likely to determine as a fair financial settlement . How can Evolve Family Law Solicitors help? For expert legal assistance with divorce and financial settlements, contact us.

The short answer is yes, you can. Whether you would really want to do it, if you knew what was involved, is a completely different matter. Thinking that you can do probate is a bit like a solicitor thinking that they can do their tax return without any input from an accountant. They may be able to file their tax return by the 31st of January and even answer queries with HMRC, but ask them if they would do it again next year and the majority would give an emphatic no. Online probate application system The good news for people appointed as executors of a Will is that the court service has announced an online probate application system for us if: The deceased died with a Will ; and The deceased was a permanent resident in England or Wales; and The Will appointed up to four executors; and The executors have the original Will. The online probate system allows the executors to start the probate application process online by applying, paying and submitting the probate application. However, after the application is submitted online further enquiries and progressing the administration of the estate is dealt with offline, by traditional post and phone. Can you do probate without a solicitor? I guess, for me, the question is not whether you can do Probate without a solicitor but whether you should do it. I am not saying that because I am a solicitor who specialised in Wills, tax and probate but because I do not believe that if you appoint a loved one as an executor the last thing that they need at a time of bereavement is the stress and worry of sorting out the probate of a friend or relative. What is more, if you are an executor, and you get things wrong, you are personally liable for your mistakes. Many people may think that is unfair as after all the executor was only trying to save the estate money by doing the work themselves, but if it goes wrong it will be the executor, rather than the estate or beneficiaries, who will end up paying for the error. You may think, 'what could possible go wrong with a bit of paperwork?'; it is not until you have sat down and started to fill in a tax return or a probate application that you realise just how complicated it can get. With probate applications, executors can run the risk of: Failing to pay the right amount of estate tax; or Not paying a debt that was due before distributing the money from the estate; or Failing to pay the right amount of estate tax or; Not paying a debt that was due before distributing the money from the estate; or Paying a residuary beneficiary too much for the estate; or Facing complaints by a residuary beneficiary, such as a charity, that the money raised should have been more, as the sale of property or other assets was not handled; or Facing someone challenging the Will because they say it was not drawn up correctly, was signed under duress, was signed when the deceased did not have capacity to sign a Will, or because the Will did not make adequate provision for them. [related_posts] Taking probate legal advice The best advice for anyone thinking about dealing with probate without help from a specialist probate solicitor is to get advice on whether they think it is OK to try. A good probate solicitor will tell you if probate is even needed and, if it is, whether there are warning signs to suggest that you will need expert help such as if: The deceased owned his own business, either as a partner in a firm or company director; or The deceased has left all or part of his estate to charity; or The estate has complicated assets in it, such as buy to let property portfolio; or The deceased has left his estate to minor children and there are trusts involved or; The deceased has a complicated personal life, perhaps with a former spouse or new partner, and there is a risk that the Will may be challenged on the basis that it does not contain adequate financial provision; or The deceased has a complicated financial life with lots of debts that will need to be sorted out before the estate is distributed; or You know that there is a risk that you will find the process of acting as an executor and handling the probate yourself too distressing during a time of bereavement or you think there risk a risk that you will fall out with sibling executors unless a professional handles the probate reports to all family executors. If you need help in deciding whether or not to handle a probate then give us a call to discuss the estate and your options. IF the estate is small, you may not need probate. If you do need probate and you are the major beneficiary of the estate, you may think it worthwhile to try and use the new online service. We are happy to help you make that decision based on what is right for you. If you do decide to ask us to deal with the estate then we can handle it entirely so there is no stress or can work as a team with you.  

When it comes to choosing a family solicitor where do you start? Well there are many ways, from phoning friends and family, to scouring the internet or even picking up the phone and speaking to one of the family law firms that advertise on the back of buses or at hoardings at the railway station. Those may be some ways to choose a family solicitor but I suspect that using those methods you will not chose one that is necessarily right for you. Why it is so important to choose a family law solicitor that is right for you Getting divorced or taking part in children or financial court proceedings is stressful. It is still going to be tough, whatever family law solicitor you chose. However, the process will be easier if you find a family law solicitor you can work with and feel comfortable instructing. Some family law solicitors may be great academic lawyers but you do not feel able to talk to them and tell them about personal matters or tell them what you want.  Other family law solicitors may offer cheap price divorce and financial settlements but you may question how approachable they are and if you are getting the best service. Questions to ask when choosing a family law solicitor When you chose a family law solicitor, you are likely to be working with them for some time so it is important to choose with care. I deliberately say ‘’working with’’ as a family law solicitor should not tell you what to do. Instead, they should talk to you about what information is needed, assess your legal options, and help you make informed choices, whether that is a referral to mediation, the commencement of court proceedings or an agreed financial settlement. Who will you be instructing? That is not as stupid a question as it sounds. In some family law firms you may see a partner on the first meeting but not speak to them again as they will delegate the work to a junior solicitor or paralegal. That can be frustrating if you chose the firm based on the recommendation to an individual family solicitor or thought that the price quoted for the advice was based on an experienced senior solicitor carrying out all the work for you. Many family solicitors delegate work and normally it is in your interests that they do so, but you need to understand who will be helping you. Is the solicitor a specialist? Most people assume that a solicitor knows what they are doing but is your solicitor a specialist in family law. Do they do a bit of family law as well as property law and Wills? Nowadays professionals will specialise in one area of law. In large firms or niche family law firms, you will find solicitors that specialise in child law or child abduction or financial settlements or prenuptial agreements. You may not think that your situation is so complicated that you need a specialist but a specialist solicitor may be more efficient in resolving your legal problem or come up with potential solutions that you have not thought of. Has the family law solicitor provided the cheapest quote or lowest hourly rate? When it comes to choosing a solicitor the one who quotes the cheapest price for the job or the lowest hourly rate will not necessarily end up as the cheapest solicitor. The old adage ‘’ you pay for what you get’’ applies. If you chose a solicitor with a lot of experience they may quote a higher hourly rate than a junior solicitor may but they should be able to focus on the key issues and help you reach a speedy resolution, rather than end up in court proceedings. If you are offered a quote for the ‘’job’’ check there are no hidden extras such as court fees or VAT. Also, check to make sure what the quote covers. It pays to read the fine print in a price guide as if you are offered a fixed fee divorce does the quote cover meeting a solicitor or being able to ask questions, or will your instructions be processed online or via a call centre. How does the family law solicitor propose to resolve your case? This question may sound like another daft question but it is not. If the solicitor talks of court proceedings as the only option then their ‘’can do’’ attitude may be appealing to you. However, court should be seen as the last resort. Court proceedings are expensive and no solicitor can guarantee an outcome. A solicitor, who takes a more measured approach and talks of the keys issues and how to compromise to reach a negotiated settlement, whilst still achieving your goals, may get the same result for you, but without the expense and trauma of court proceedings. [related_posts] Do you like the family law solicitor? Liking your family law solicitor is not an essential part of choosing your solicitor but it does help to either like or respect them. After all, you will be working with them, as a team, so you need to be able to talk to them about your personal and financial affairs and have confidence in them. If you like your family solicitor then it makes it easier to reach a children or financial settlement. That is because when they suggest a compromise or a solution you know you will feel comfortable discussing the pros and cons with the solicitor and can have an honest discussion about whether or not you would get a better deal by going to court. Remember though, however much you like your solicitor you are the one who is in charge. They may offer advice, support and guidance on your legal options but the choice is yours. For information about how Evolve Family Law can help you, please contact us

Deciding whether to separate is never straightforward, whatever your circumstances. Sometimes the decision is not of your making and that can be as difficult to come to terms with. At Evolve Family Law, we talk to clients who are: • Not sure of what they want to do; or • Clear that divorce is the right option for them; or • Have been separated for many years and want advice on changing or enforcing financial or children court orders. Many people are wary about taking divorce advice because they think they should know what they want to do before they see a solicitor. That is not the case. Experienced solicitors always like to discuss options so you can make an informed decision about what is right for you. Should we separate? That is a tough decision that only you can make. As experienced Manchester divorce solicitors, we can talk to you about your legal options and potential outcomes. Many people canvass views from friends and family when deciding whether to separate. Everyone has his or her own experiences and agenda but what Evolve Family Law will not do is push you into a separation or divorce. When should I tell my partner? Timing can be crucial, as you may want to think about making sure that you have access to funds, your paperwork and possessions before talking to your partner. You may also want to make sure that you or your partner can have space away from one another. For some people that involves making sure they can stay with friends or family or that their partner can do so. If you are worried about your partner’s reaction, you may need an injunction. Talking to the children Ideally, parents should talk to children together so that the children know that both parents are going to continue to look after them, but in separate households. There is a lot of information and support available for both parents and children to help parents answer children’s questions in an age appropriate way. Leaving the family home It is always sensible to take legal advice from a Manchester divorce solicitor before leaving the family home. Many people think that if you leave the family home you will lose your claim to a share of the property. That is not the case but the decision to leave the family home can have a big impact on the children and on how long it can take to reach an agreement. Legal advice is therefore key to making the right decision, rather than feeling pressurised or desperate to leave, as you do not know your options. Secure your computer and your documents If you take the decision is taken to separate you may want to keep some information private. Think about changing passwords for your phone, laptop or computer. At a later stage, you will need to provide your financial documents and paperwork. If you are concerned that your partner may remove your paperwork make sure that you put it in a safe place as it can take time to obtain duplicate information. Joint bank accounts and credit cards If you and your partner have joint bank accounts and credit cards you may want to think about making sure that funds are not taken from the accounts. Ideally, this is something that should be agreed. However, if you fear that funds could be taken then accounts can be frozen or overdraft or credit facilities reduced. Many couples who are able to split up on an amicable basis continue to use a joint account until they reach a financial settlement. This is not appropriate for all families. [related_posts] Maintenance and child-support People worry about paying bills if they split up from a partner. Ideally, after taking legal advice, you and your partner will discuss financial support to include spousal maintenance or child maintenance until you decide, on a long-term basis, how assets and property should be split. Taking advice from a Manchester divorce solicitor will help you know what is fair and reasonable. If you cannot reach agreement then mediation may help you sort out temporary financial arrangements. If you and your partner struggle to agree then the court can make temporary financial support orders. Whether you decide to separate, divorce or stay Evolve Family Law can help you explore your legal options so you can make an informed decision. For legal help with divorce proceedings and financial claims or childcare arrangements please call Contact Us Today

As a Manchester divorce and family finance solicitor I spend my days negotiating financial settlements or representing clients in divorce and financial court proceedings.   However, after many years of experience in family law, I appreciate that even after you have secured a financial court order it is not over until a husband or wife has received their divorce financial settlement. The high profile case of Farkhad and Tatiana Akhmedova really emphasises just how difficult it can be to enforce a court order and get the money after a divorce financial settlement. The case of Farkhad and Tatiana Akhmedova In 2016, an oil and gas tycoon, Mr Akhmedov, was ordered to pay about 40% of his wealth to his wife, Tatiana. The award by the high court in London was hailed as one of the biggest divorce settlements at the time that it was made .That is because the Russian billionaire had been told by a London judge to hand over about 453 million to his ex-wife. Roll on two years; Mr and Mrs Akhmedov have hit the headlines again. Mrs Akhmedov has finally received some of her divorce financial settlement. The path to her getting the money has been far from straightforward. Mr Akhmedov reportedly did not agree with the court decision, believing it to be wrong. That left Mrs Akhmedov with a financial court order that said she should get a 90 million-art collection, property in England worth 2.5 million, a £350,000 car and a 350 million cash payment. However, the reality was that she had little more than a piece of paper from the court that was only worth anything if it could be enforced. Applying for a freezing order after the settlement As Mr Akhmedov had not complied with the financial court order and handed over the cash and property in accordance with the financial court order Mrs Akhmedov applied for a freezing order. She then employed specialist asset tracers to try to locate and unravel ownership of assets to ensure that she got her financial settlement. Although the figures for Mr and Mrs Akhmedov are eye watering it is nonetheless the case that freezing orders have to be considered either during or after financial court proceedings. After all, there is little point in obtaining a financial court order if it cannot be enforced because the assets have disappeared through sale or transfer to third parties. Recovery of assets after the divorce settlement The asset tracers employed on behalf of Mrs Akhmedov have recovered a helicopter that was used to transport people to Mr Akhmedov’s yacht. It is reported that the sale of the helicopter has raised just under 5 million. The yacht is impounded in Dubai. There is ongoing legal argument over seizure of the 300 million super yacht and the recovery of other assets. Enforcing the court order You may wonder why Mr and Mrs Akhmedov are locked in such an expensive court battle. The rationale behind Mr Akhmedov’s objection to complying with the London financial court order is, at its simplest, that he does not believe the London high court had jurisdiction to make the financial court order for a variety of reasons. Furthermore, Mr Akhmedov maintains that the assets are held in trust or by companies and therefore the financial court order cannot be enforced against them. Enforcing court orders: getting the money after a divorce financial settlement You may question how the case of Mr and Mrs Akhmedov is of relevance to anyone other than Russian oligarchs. However, the principles of enforcing court orders and getting the money after a divorce financial settlement are just the same whether you are seeking to recover multi millions or thousands of pounds. [related_posts] Tips on enforcing court orders after a financial settlement In my experience when it comes to getting your money after a financial court order it is sensible to: Plan ahead : ideally you should take legal advice before you separate so that you know where you may stand financially ; Get a tenacious solicitor : you will need a solicitor who is proactive and a specialist family lawyer if you need to try and find assets during the financial court proceedings and recover assets after the financial court order has been made; Think about enforcement and recovery when negotiating the financial settlement: sometimes you want the holiday property in Barbados as part of your divorce settlement. It does however reap rewards if you think about how easy it will be to enforce the court order before you finalise the financial settlement; Take advice on injunctions to preserve assets: if you fear your spouse will deliberately sell or transfer assets to defeat your financial claims you can apply for what is known as a section 37-injunction order; Take care with the wording of the financial court order: make sure that the order is expertly drawn up to help with enforceability. For example , if the court order says the family home is to be sold anticipate issues and have clauses put in about how the sale price will be determined or what happens if you receive offers on the property and cannot agree on the sale price; Do not delay: if you have a financial court order and it has not been complied with in the court ordered timetable do not delay in enforcing the court order. Delay may be very prejudicial to you, for example if your spouse is at risk of bankruptcy or might leave the UK making it harder and more expensive to trace assets. It goes without saying that as well as needing a tenacious divorce and family finance solicitor you also need to be equally tenacious and patient. These are skills that Mrs Akhmedov has probably had to learn since her 2016 financial court order. For legal help with financial claims in divorce proceedings or enforcing financial court orders please Contact Us Now

It is often assumed that divorce and family money in trust is the preserve of the ultra-wealthy but that isn’t always the case as was established by the court proceedings concerning Henry and Ellen Wodehouse. It is reported that the money placed in trust by the late Earl amounted to about £600,000 but the trust fund was a discretionary trust with 15 potential beneficiaries including Mr Wodehouse’s stepmother. Henry Wodehouse, the third son of the Earl of Kimberley, whose claim to fame was that he was the most married UK peer having tied the knot 6 times before his death , has hit the headlines as a result of his own divorce. Why is that newsworthy? Henry Wodehouse’s divorce has hit the headlines because the financial battle between him and his estranged wife centred on money held in trust, set up under the terms of his late father’s Will. The case of Henry and Ellen Wodehouse was the subject of media reporting after it was said that Mrs Wodehouse was reduced to living on her brother’s boat after losing a Court of Appeal case that centred on whether she should get a £90,000 payment. Trusts are also often thought of as ‘’old money’’ but in Mr Wodehouse’s case the money had been placed in trust by his late father, rather than generations earlier. When a family court considers divorce and trusts the court’s first consideration is whether the trust is a nuptial trust or a non-nuptial trust. If the court finds that the trust is a nuptial trust the court has wide powers and can change who benefits from the money in the trust. If the trust fund is found to be a non-nuptial trust then the family court powers are far more limited. Normally  the court would focus on awarding the spouse who was not a beneficiary of the trust fund all or a greater share of the family assets , on the basis that the spouse who was a discretionary beneficiary of the trust fund would likely receive either capital or income distributions from the trust fund. Sadly that solution didn’t work for Mrs Wodehouse as, other than her husband's very modest pension, there were no other assets as all the equity in the family home had been eaten up by secured debt, leaving the trust fund as the only asset of substance until the Court of Appeal ruled that the particular trust was of a type that could not be ordered to pay Mrs Wodehouse a lump sum payment or be ordered to pay the amount to Mr Wodehouse to then hand over to his ex-wife.   Mr and Mrs Wodehouse married in 1992 and separated in 2011. During the marriage   Mr Wodehouse had his share of financial difficulties, being made bankrupt in 1990 and 2010.  Mrs Wodehouse had health problems making working difficult. The couple went to court to sort out how their property and money should be split. It was ascertained that whilst they owned a family home there was no money in it as there was more debt secured against the house than equity in it. Where did that leave Mrs Wodehouse? The first judge said she should get a lump sum payment and a share of her husband's pension. Mr Wodehouse appealed to the Court of Appeal saying that he had no money to pay the lump sum and that the court could not expect the trust fund to pay the amount of £90,000 to Mrs Wodehouse. His barrister argued that the trust fund was a discretionary fund, Mr Wodehouse had no entitlement to the trust money and the trust had not been a party to the original financial court proceedings. The Court of Appeal, whilst expressing sympathy for Mrs Wodehouse’s financial predicament quashed the lump sum payment but it did maintain the pension sharing order that provides for Mrs Wodehouse to receive half of her former husband's police pension. The income from the pension is modest and will not go anywhere towards discharging the reported family debt. How can Evolve Family Law Manchester Divorce Solicitors Help? The Wodehouse case is a cautionary tale but it should not deter spouses from making financial claims involving trusts. Equally the case highlights the importance of estate planning. Had the money not been placed in trust by Henry Wodehouse’s late father it is debatable as to whether the money would still have been available for Mr and Mrs Wodehouse to litigate over given the creditor’s claims but, through use of estate planning, money has been preserved. For legal assistance with trusts and financial claims on divorce or any other aspect of family law please contact us. Appointments available in Manchester and Cheshire.