First published in FT Adviser on 9 November 2026
Alice Rogers - Legal Director at Burgess Mee
TP vs TF is a high-net-worth divorce case that examines how family trusts can be treated and divided. The husband and wife were both 63 at the time of judgment, having married in 2001 and separated in 2024. They had two adult children. This was undoubtedly a long marriage; the length of marriage, which includes pre-marriage cohabitation, is one of the factors the court has in mind when considering the fair division of assets.
The husband’s wealth derived from longstanding trust assets and life interests, all of which became subject to scrutiny during this litigation. The children, and in some but not all cases the wife, were within the beneficial class of the trusts. Like many family trust structures, valuable shares were held by the trust (either directly or through companies) and reported to be worth many billions of pounds. In 1995, the trustees agreed to allocate 2.5 per cent of this equity to be held for the husband’s benefit, in return for his role within the business. It is this allocation (pot) and the nature of that asset which became the disputed issue in the case. The pot generated significant income for the family throughout the marriage, most of which the trustees were happy to pay to the husband during his lifetime, with the capital and income held on trust for the children.
This is not an unusual framework for clients with generational wealth from trusts settled by their predecessors. Upon divorce, the wife made an application to court for her financial claims to be dealt with. Her position was that the full value of the pot was a resource available to the husband and, more importantly, was matrimonial in nature, for example, built up or acquired during the marriage. The husband argued that it was neither his resource nor matrimonial and therefore should not be shared with the wife. The husband and wife were each represented by a team of family, trust and tax lawyers. The case, which incurred legal fees totalling some £6.5mn, ran for two years, with several hearings both in and out of court, including an unsuccessful private financial remedies hearing. The litigation culminated in an eight-day High Court hearing in April 2026. The central issues, according to the judge, were whether certain trust assets were capital resources available to the husband; their net value; and whether they constituted “in whole or part matrimonial assets to which the equal sharing principle applies”.
Both parties gave evidence and were cross-examined. The wife received an award comprising property, investments and pension provision but, most notably, a lump-sum payment of £120mn from the husband’s trust assets.
The family court system in England and Wales is discretionary. The court must have regard to all circumstances of the case, particularly the section 25 factors listed in the Matrimonial Causes Act 1973. There are broadly two ways in which trusts can be treated. A nuptial settlement, with a connection to one or both of the spouses, can be varied directly by the court on divorce. This power goes back over a century in various guises. The concept of what constitutes a settlement has been broadly interpreted; the concept of nuptiality is nuanced. The other approach, engaged in TP vs TF, is whether the assets of the trust should be considered a resource, which is far from straightforward. Both the capital and income could potentially fall under the category of section 25(2)(a) of the Matrimonial Causes Act 1973, which requires the Family Court in England and Wales to have regard to “the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future”.
The starting point for trusts in a divorce is the Charman test: whether the trustees would be likely to advance the capital to the spouse beneficiary upon a request being made, and whether that distribution would be immediate or in the foreseeable future. This came from the Charman vs Charman, the well-known 2007 Court of Appeal case in which the judge held that the assets within an offshore trust would be made available to the husband upon request and were therefore a resource available to him. The leading trust case in England and Wales, it was at the time the largest financial award made in contested proceedings. Very often clients benefit from the tax treatment of offshore trusts whilst being resident and domiciled in England and Wales. The reported cases emphasise the need for specialist advice from the jurisdiction in which the trust is settled. For example, Mr Charman’s family discretionary trust was Bermudian, and the court stated: “It is essential for the court to bring to it a judicious mixture of worldly realism and of respect for the legal effects of trusts, the legal duties of trustees and, in the case of offshore trusts, the jurisdiction of offshore courts.”
Trustees should seek independent advice when asked about trust assets in the context of separation or divorce, particularly offshore ones, at the disclosure stage of the process. There is a risk that in engaging with the proceedings, the trustee may inadvertently submit to the jurisdiction with significant and costly repercussions for the trust assets. The question of jurisdiction, concerning which court is the appropriate forum for an international dispute, is complex and often triggers standalone difficult litigation.
Unsurprisingly, the determinative evidence in TP vs TF examined at trial was a letter from the trustees, referred to as “the Charman response” in the judgment, which confirmed that “the trustees would be minded to make available to the husband the vast majority and potentially the entirety of the value of [pot]”. There was debate about this wording and what would be a reasonable interpretation. Interestingly, the judge remarked that what was most important to him was the “contemporaneous documents and the written evidence of the trustees” rather than the parties’ oral evidence. He directed criticism at the husband for failing to present his case properly in his financial disclosure. In fact, the husband indicated that the trusts were a resource available to him in his Form E (the court-mandated disclosure document setting out an individual’s capital, income and pension). Moreover, when an asset schedule was prepared, it included the capital value of the pot, in another indication that the husband accepted it was a resource available to him. The trustees provided the Charman response some time into the litigation, after which the issue became not whether it was a resource but (i) the correct value to attribute to the husband’s trust interests and (ii) the extent to which the assets were matrimonial.
Given the wealth available, TP vs TF would be categorised as a “sharing” rather than “needs” case as the total assets far exceeded either party’s reasonable needs, even generously interpreted, and therefore the question became how the matrimonial and non-matrimonial assets should be shared.
The landmark 2025 Supreme Court decision in Standish vs Standish clarified that the distinction between matrimonial and non-matrimonial property depends on the source of the assets. Non-matrimonial assets, such as gifts and inheritances, should not be subject to the sharing principle unless required to meet a party’s needs. Matrimonial property, representing the fruits of the marriage partnership, should normally be shared equally. Non-matrimonial assets may also become matrimonial through a process of matrimonialisation.
The treatment of an asset is crucial. If a spouse receives a gift or advance inheritance and uses it to reduce the balance of a mortgage on the family home, the asset may have been converted from non-matrimonial to matrimonial.
In TP vs TF, the judge relied (as he should) on Standish, deciding that at least the value of the pot accumulated during the marriage (and the passive growth since) was matrimonial property because it resulted from “the fruits of the marriage partnership”.
This was despite the wealth originally emanating from the husband’s family money.
While structures such as trusts and family investment companies might have significant tax and wealth planning benefits, they are vulnerable from a family law perspective. TP vs TF is an important reminder that the family court’s powers are extensive and that these assets may be exposed to sharing claims. In this case, the judge found that the pot was a resource available to the husband and therefore capable of equal sharing.
The English court also has the power to vary any prenuptial or postnuptial settlement, including a settlement made by will or codicil. Clients may mistakenly assume that assets held in a trust are protected from divorce claims. Including a spouse as a beneficiary may be advantageous for tax purposes but can increase exposure to claims on divorce. Pre and postnuptial agreements are an important wealth protection tool. While they do not yet have binding status, they demonstrate the intention and agreement of the parties in the event of a marriage breakdown. Often, they include an express clause disclaiming any interest in a trust or family structure.
Clients often find that the agreement also provides certainty throughout the marriage itself, as it defines how wealth is intended to be built up during the marriage, regardless of an asset’s origin.
A prenuptial agreement often distinguishes between joint and separate property, allowing a party to ringfence pre-acquired, inherited or gifted wealth. While the motivation for nuptial agreements differs from case to case, a common theme is protecting generational wealth.
In TP vs TF, the husband tried to persuade the court to take a conservative approach when interpreting what the trustees meant by “vast majority”, arguing that the trustees had an obligation to consider the interests of the next generation and future beneficiaries.
The judge rejected this argument as too vague, finding that the children’s financial interests would not be appreciably damaged by the distribution of the pot. The argument therefore did little to support the husband’s attempt to reduce the wife’s entitlement.
As well as meeting the needs of the financially weaker party (and the children) in the event of divorce, if a pre or postnuptial agreement is prepared properly, it should:
Divorce cases involving trust assets are complex and inevitably high value. The stakes are high, with multiple individuals involved and impacted by the outcome. Carefully drafted nuptial agreements can provide safeguards, but they only deliver their full value when the advice behind them is collaborative. The best protection comes when family, trust, tax and wealth advisers work together, understanding where their perspectives conflict and where they reinforce each other.
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