Advising Trustees in Divorce Proceedings

Professional trustees (both on and offshore) are often drawn into divorce proceedings involving a beneficiary with little warning. Decisions made at an early stage can have significant consequences for the trust, the trustees and the beneficiaries as a whole. The court may scrutinise trust assets, request disclosure relating to the trust, and assess the extent to which the trust may be treated as a financial resource or variable nuptial settlement in any financial settlement.

JMW advises trustees in divorce proceedings, including offshore trustees in jurisdictions such as Jersey, Guernsey and the Isle of Man. We provide clear, technically assured advice to help you determine the appropriate level of engagement, manage disclosure obligations and protect the position of the trust within financial remedy proceedings.

If you are a trustee facing English divorce proceedings involving a beneficiary, speak to our specialist team for early strategic advice. Call 0345 872 6666 or complete our online enquiry form to arrange a confidential discussion.

How JMW Can Help

Advising trustees in divorce proceedings requires a detailed understanding of both family law and trust law, as well as the practical realities of managing high-value trust structures. Our role is to help you navigate this scenario with clarity, ensuring that trust assets are protected while wider fiduciary duties are maintained.

We provide strategic advice tailored to trustees involved in English divorce proceedings, including:

• Establishing an early strategy: We advise at the outset on how the trust is likely to be viewed within financial remedy proceedings, to help you determine the appropriate level of engagement and protect the trust’s position from the outset.
• Managing engagement: We guide trustees on understanding trusts and how to engage with divorce proceedings in a way that avoids adverse inferences, while typically minimising the risk of submitting to the jurisdiction of the English court.
• Advising on financial disclosure and trust documentation: We provide clear advice on trustee disclosure in divorce, including what trust documents may need to be disclosed, how to respond to requests for trust disclosure, and how to balance transparency with duties of confidentiality.
• Supporting trustees through financial proceedings: Where trustees are drawn directly into financial proceedings, we advise on responding to financial claims, attending hearings where required, and ensuring the trust’s position is clearly and accurately represented.
• Coordinating offshore and multi-jurisdictional advice: We regularly work with trustees and legal advisers in jurisdictions such as Jersey, Guernsey and the Isle of Man, providing coordinated advice in cases involving offshore trusts and international trust and divorce litigation.

JMW’s family law team works closely with our private wealth and private wealth disputes specialists, offering a collaborative approach that is particularly valuable in complex, high-value matters. We also involve our experienced in-house barrister at an early stage to provide additional strategic insight into how the court is likely to approach the trust structure and its assets.

Our focus is on delivering clear, practical guidance that allows trustees to make informed decisions, manage risk effectively and protect family wealth and trust assets for current and future generations.

For further insight into how trusts are treated on divorce, you can also explore our pages on Trusts in Divorce for Beneficiaries and Asset Protection Solicitors, which set out how these issues arise in practice and how proactive structuring can support long-term protection.

Meet the Team

Our team advises professional trustees on complex trust structures in divorce proceedings, combining expertise in family law, trusts and cross-border matters to deliver clear, strategic guidance.

What Is the Trustee's Position in English Divorce Proceedings?

When trustees become involved in divorce proceedings, the starting point is understanding how the English family court is likely to approach the trust and the assets held within it. This will shape both the level of exposure and the strategy required.

The court has wide-ranging powers in financial remedy proceedings and will consider whether, and to what extent, trust assets should be taken into account in any financial settlement. This typically involves analysing the nature of the trust, the terms of the trust, and how the trust has operated in practice.

In broad terms, the court may:

• Treat trust assets as a financial resource: Even where matrimonial assets are not owned by the beneficiary spouse or civil partner, the court may consider them a financial resource if the beneficiary has previously benefited from the trust or is likely to do so in the foreseeable future. This can influence the overall divorce settlement, including the level of provision expected from other assets.
• Examine whether the trust is a nuptial settlement: Where a trust has a connection to the marriage, the court may treat it as a nuptial settlement. This gives the court the power to make orders that affect the structure or operation of the trust. This can include altering how trust assets are applied for the benefit of one spouse or the other.
• Scrutinise the reality of the trust’s operation: The court will look beyond the legal structure to assess how the trust has been used in practice, including the pattern of trust distributions, the role of the trustees, and the extent to which the beneficiary has relied on trust funds.
• Draw adverse inferences where appropriate: If there are concerns around transparency or financial disclosure, the court may draw adverse inferences about the extent of the assets available, which can have a direct impact on the outcome of the proceedings.

For trustees, the key issue is not just the structure of the trust, but how it is likely to be perceived by the court in the context of the wider financial proceedings. Understanding this position at an early stage allows for an informed response to any financial claims against the trust which may arise.

How Should Trustees Engage With Divorce Proceedings?

For trustees in divorce proceedings, the key challenge is determining how to engage with the English court. The appropriate approach will depend on the structure of the trust, the nature of the financial claims, and how the court is likely to treat the trust assets. 

What are the risks of too little engagement?

Taking a minimal or zero engagement approach in divorce proceedings is often perceived negatively by the court and is rarely the correct approach. Where trustees do not provide sufficient financial disclosure or fail to engage with requests relating to trust documentation, the court may:

• Draw adverse inferences about the value and accessibility of trust funds
• Assume that assets are available to the beneficiary spouse and reflect this in the financial settlement
• Make an order for specific disclosure
• Join trustees as parties to the financial proceedings, requiring them to attend hearings and give evidence

In practice, a lack of engagement or deliberate non-disclosure can leave the trust more exposed, particularly where the court considers that transparency has not been achieved.

What are the risks of too much engagement?

Conversely, a highly active approach can also create difficulty, particularly for offshore trustees. Engaging too fully in financial proceedings may risk trustees submitting to the jurisdiction of the English court, which can have longer-term consequences for how the trust is treated.

For offshore trusts in jurisdictions such as Jersey, Guernsey and the Isle of Man, this is a critical issue. While local firewall legislation is designed to protect trust assets, it is not absolute. Careful management in such circumstances is required to avoid undermining those protections.

Striking the right balance is case-specific and requires careful advice at the earliest opportunity. Our family lawyers provide a clear strategic pathway to manage these situations, protecting both the trust and the trustees.

Disclosure Obligations and Trust Documents

Requests for disclosure are a central consideration for trustees in divorce proceedings, particularly where trust assets may be relevant to a financial settlement. The court will expect sufficient transparency to understand how the trust operates, even where trustees are not formal parties to the proceedings.

For trustees, the key issue is how to respond to these requests in a way that satisfies the expectations of the court without compromising duties to other beneficiaries.

In practice, this means taking a structured and measured approach to:

• Responding to requests for trust documents
• Protecting confidential information relating to other beneficiaries and the wider trust structure

The way disclosure is handled can directly influence how the court views the trust and whether it is treated as a financial resource within the financial proceedings.

We advise trustees on managing disclosure strategically, ensuring that information is provided in a controlled and appropriate way that supports the trust’s position while ensuring wider obligations are complied with.

Offshore Trustees and English Divorce

For offshore trustees, the risks associated with divorce proceedings are often more complex. Trusts based in jurisdictions such as Jersey, Guernsey and the Isle of Man are frequently drawn into English financial proceedings, creating complex questions around jurisdiction, enforcement and the treatment of trust assets.

While offshore structures may benefit from firewall legislation, this does not remove the need to engage carefully with the English court. A failure to do so will often result in the court drawing damaging adverse inferences, making damaging orders in respect of the trust and satellite litigation in the jurisdiction where the trust is located.

The key issue for offshore trustees is how to manage this position without undermining the integrity of the trust or exposing it to unnecessary risk.

Offshore trust and divorce cases require:

• A clear strategy on how and when to engage with the English financial proceedings
• Close coordination with advisers in the trust’s home jurisdiction
• Careful management of how trust assets and trust structures are presented

We work closely with offshore trustees and their other legal advisers to provide coordinated advice, to protect trust assets and manage risk across jurisdictions. Visit our international family law page for more information.

Why Early Advice Is Critical

For trustees, timing is often the single most important factor in determining how effectively a trust can be protected in divorce proceedings. Once positions become established within financial remedy proceedings, the scope to influence how the court views the trust and its assets can become more limited.

Taking advice at an early stage - ideally at the first indication that a beneficiary’s relationship may be breaking down - allows trustees to:

• Assess how the trust is likely to be treated within any future financial proceedings
• Establish a clear strategy for engagement with the court
• Manage the flow of information and financial disclosure from the outset
• Reduce the risk of adverse inferences being drawn about the availability of trust assets

Delaying advice can result in reactive decision-making, increased scrutiny from the court, and a greater risk that the trust is exposed within the financial proceedings.

We work with trustees at an early stage to provide clear, strategic guidance, helping to protect the position of the trust and ensure that decisions taken throughout the process are aligned with the trustees’ duties and the long-term interests of the beneficial class.

Why Choose JMW?

JMW advises trustees in divorce proceedings where there are complex, high-value trust structures, often involving international trust assets across multiple jurisdictions. Our work combines detailed knowledge of family law with a practical understanding of how trustees manage and protect trust assets in real-world scenarios.

Ruben Sinha is a recognised specialist in trusts in divorce, with experience in cases that have shaped how the court approaches trust structures on divorce. He works closely with JMW’s private wealth and contentious trusts teams, ensuring that advice is aligned across all aspects of the trust, including governance, tax and long-term succession. Ruben also leads JMW Signature, a specialist offering meeting the unique needs of high and ultra-high net worth families, family offices and family businesses both in the UK and internationally.

We also involve our in-house barrister, Abigail Bennett, at an early stage. This provides additional strategic insight into how the court is likely to approach the trust, particularly in complex financial proceedings involving high net worth divorce and offshore structures.

Our team has established close working relationships with trustees and advisers in jurisdictions such as Jersey, Guernsey and the Isle of Man. This allows us to deliver coordinated advice across borders, help trustees manage risk, respond to financial claims, and protect trust assets for current and future generations.