| The court has to have regard to the “income, earning capacity, property and other financial resources that each party to the marriage has or is likely to have in the foreseeable future” (Section 25(2)(a) Matrimonial Causes Act 1973).
Property and other financial resources can include expectations under a will and beneficial interests under a trust.
Expectations under a will
It is rare for a future entitlement under a will to be treated as a financial resource. It is difficult to predict life expectancy and therefore when an inheritance might be received. Another difficulty is trying to establish the amount that might be received and the uncertainty that a testator can change the terms of their will at any time. Unless a testator is a party to the proceedings, they are not obliged to disclose the terms of their will or value of their estate.
Whilst rare, if a future inheritance does have certainty, the court may consider it a resource. For example in Hayat Youssef Alireza v Hossam Youssef Ibrahim Radwan and others [2017] EWCA Civ 1545 the court held that Saudi forced heirship laws meant that the wife’s future inheritance had certainty.
The court may also consider adjourning an application if one party to the proceedings is due a substantial inheritance that would significantly alter the available assets.
Trusts
Assets or entitlement to income under a trust are a financial resource. Whether or not they will be included in a divorce settlement will depend on the likelihood of the asset or income being received within the foreseeable future and the type of trust. The court will also look at the history of the trust; whether there have been previous advances to the beneficiaries and whether the trustees would be likely to advance capital at the request of the beneficiaries.
The origin of the funds in a trust will also be relevant. The court will distinguish between matrimonial assets (assets acquired during the marriage through the joint efforts of the parties) and non-matrimonial assets (those acquired prior to marriage, post separation or received through an inheritance). In White v White [2000] UKHK 54 it was recognised that a party should be allowed to keep his non-matrimonial property, brought into the marriage or inherited or gifted to him during the marriage if the other party’s financial needs could be met without recourse to the non-matrimonial assets.
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