Divorce and Trust Fund - sorry it's a bit long

[Pippinlongsocks]

Ex and myself were together 30 years and married for 17. One child of 13. Separated since January 2013. Ex wants me to admit adultery so we can divorce quickly. I haven’t committed adultery and I am not prepared to lie for him. We separated because of his abusive behaviour.

We sold our family home last year and shared the equity 60/40 (I got the 60% as DS lives with me). At the time ex had approx £12k left of an £18k inheritance that he’d received before we agreed to separate. He kept this separately from our joint account.

He is an unbalanced and intimidating individual and I did not fight for anything other than my 60% share of the equity so I could buy a home for DS and me and get us a better life away from him. I have a large mortgage, receive working tax credits and work 25 hours per week.

My DS has a trust fund left to him by a relative of my ex. My ex is the only trustee of the fund. He has used 75% of the trust fund (could be around £79k) and by adding it to a small mortgage and his share of the equity from the sale of our family home he has bought and renovated a 4 bedroom house. He lives alone. To my knowledge he is not re-paying the amount he has borrowed from the trust fund and has assumed he will repay it when he inherits from his elderly parents.

He has claimed he will divorce me after we have been separated for 2 years and pay for a divorce as I refuse to admit adultery now. I have stated that I will agree to a divorce after our two year separation IF he provides a legal document stating how my son’s inheritance is being invested and what plans he has to repay the complete fund to him as per the conditions of the original will.

He has stated that as the money came from his family it isn’t anything to do with me and he will not provide any legal confirmation of his plans. I feel that what my ex has done in using a substantial portion of my DS trust fund is wrong. As I understand it as a trustee he is not meant to benefit from the money himself.

If he petitions me for a divorce on the anniversary of our 2 year separation are there risks involved in my ignoring it? I believed that if I ignored his petition to divorce me after 2 years he then has to wait the full 5 years after separation to divorce me without my consent. However, I have read that he could got to court to force me to respond and I could then be liable for all the costs associated with this if he is able to divorce me. I suspect he will not want to wait the full 5 years as he will expect to inherit in that time and would not want me staking a claim on his inheritance.

Taking him on legally is not an option financially. Myself and my DS are so much happier and although money is extremely tight I am just getting on my feet financially but there isn't anything spare. I feel this will take more than just a free half hour with a family solicitor due to the complication of my DS' trust fund.

He pays me the minimum maintenance and sees DS for no more than around 15 hours one day per week which is an overnight stay. He refuses to commit to any childcare arrangements and confirms arrangements by text directly with my DS. He will not help with childcare during half terms and summer holidays.

I would prefer to be divorced from him if I am honest but if I agree in January next year I feel I am giving up any possibility that I have in protecting my son’s trust fund for him.

Any help will be appreciated. Thanks for reading, so sorry it’s long.

at the very least you need to have him removed as a trustee so he can't burn through the rest (also nb have you checked whether he's put the new property into your son's name? has he simply converted the trust cash into asset? he may be entitled to do that, and hold the property on trust)
Very unusual for a trust to have a single trustee too - are you sure there isn't another? do you have a copy of the trust document? The bank holding the trust funds shoudl be put on notice of this misappropriation of the trust funds (once you're sure that the property isn't in son's name etc) . Are there other family members you can speak to?

Thanks SpringBreak for responding. No other trustee now. Unfortunately it is not the best idea for me to disclose too much of the story due to a long saga of mis-management. Hence my concern now for getting anything done about it. I am pretty sure it has been converted into asset and is not in my DS name. No other family members to talk to about as I have been disregarded by in-laws.

Thanks babybarrister x

No useful advice sorry but just wanted to say what a bastard your ex sounds like. You're well rid of him. All the best in getting this sorted.

Hi Pippi
I think there are two separate issues here; the divorce and the breach of trust. 'm not a specialist in family law but I don't think that you should delay your divorce proceedings over this matter. The trust is a separate issue and should not be included in any financial settlement.
As far as the trust is concerned it seems quite clear to me that your former spouse is in breach of his responsibilities as trustee.
For a start if he has bought a house with a mortgage then this is almost guaranteed to be in his own name as mortgage companies very rarely lend to trustees. If you know his address then you can get a copy of the title deeds from the land registry to check the ownership of the property. This costs about £4. If it has been done properly then it will say something like "registered proprietor Joe Bloggs as Trustee for Bloggs Family Will Trust". if it just says Joe Bloggs then it's his.
If he is in breach then your son can sue for mismanagement of funds once he reaches the age of 18. I'm not a litigator but I would think that you can sue on your DS's behalf before then . You can also apply to the court to have him removed as trustee.
If the house is in the trust's name then it he should be paying rent to the trust for its occupation.
I would approach this as follows:

1. Obtain a copy of the will creating the trust if you don't have one already. Cost is £6. You need to complete form PA1S. hmctsformfinder.justice.gov.uk/courtfinder/forms/pa001s-eng.pdf
2. Get a copy of property title deeds from Land Registry. www.landregistry.gov.uk/public/property-ownership
3. Make an appointment with a litigation solicitor. In the first instance you want the solicitor to write and ask for a copy of the trust accounts which should be provided annually to your son as the beneficiary ( ie to you as his parent). The accounts should show the nature and value of any assets, income produced and any expenses. If the trust investments are producing taxable income then annual trust tax returns need to be filed.

I hope this helps. PM me of you wish.

I would also see a family solicitor re the divorce. But they really are two separate issues.