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IBA Annual Conference Miami 2022

30 Oct - 4 Nov 2022

Room 237, Level 2

Session information

The need for pre- and post-nuptial agreements (PNAs): can you trust trusts in international divorce cases?
Room 237, Level 2
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Committee(s)

Family Law Committee (Lead)

Description

It is now firmly established in some jurisdictions that assets held in a discretionary trust are at risk of being treated by the court as a potential financial resource in divorce proceedings if either or both of the parties are beneficiaries of the trust. The vulnerabilities of trusts on divorce are sometimes misunderstood. This session will look at those vulnerabilities, and we will deal with a common misconception that trusts are only relevant to common law jurisdictions. On this issue we will look at situations where common law trusts have civil law jurisdiction foundations appointed as trustees, where criminal offences can be committed by the trustees if trust disclosure is provided, causing in turn major conflict ramifications for settlors and/or beneficiaries going through divorce in the more generous common law jurisdictions in the world (generous for the financially weaker party, that is). We will also look at the most effective way to handle litigation when trusts are being attacked in the divorce courts - including whether trustees should submit to the jurisdiction of the divorce court. What happens if the trustee is joined into the divorce proceedings?

We will look at PNAs from an international perspective and particularly why responsible trust structuring in tandem with PNA structuring may be the best approach to adopt. When should you enter into a PNA? What are the pitfalls? What do you have to watch out for? Do they work? We will be reviewing some key international PNA cases of significance. We will be looking at how PNAs can sometimes help relationships. Conversely we will deal with circumstances when they should be avoided: a ‘shot gun’ PNA for instance, or negotiation of a PNA where one party is clandestinely sabotaging its effectiveness, because often millions or billions are at stake. We will be looking at the situation where there is fraud, misrepresentation or undue pressure, and what evidence is relevant: PNA ‘amnesia’ is not an infrequent occurrence, where, after the divorce petition has been filed, the financially weaker party asserts that he/she can remember very little about any legal advice they received, and the circumstances surrounding, and the events leading up to, the signing of the PNA. Sometimes, the amnesia is genuine, sometimes not. Does it matter? In the family court, the judge may want to know every piece of that evidence. 

Session / Workshop Chair(s)

Marcus Dearle Miles Preston, London, England; Chair, Family Law Committee
Joshua Rubenstein Katten Muchin Rosenman, New York, New York, USA; Associations and Committees Liaison Officer, Family Law Committee

Speakers

Roberta Ceschini Ceschini & Restignoli Law Firm, Rome, Italy; International Organisations Liaison Officer, Family Law Committee
Johannes Gasser Gasser Partner Rechtsanwälte, Ruggell, Liechtenstein
Judge Dale Kemp Federal Circuit and Family Court of Australia, Sydney, New South Wales, Australia; Judicial Liaison Officer, Family Law Committee