House in trust and divorce

[Mylifestartstoday]

20 years ago my parents put their house into a discretionary trust, making myself and my brother as trustees. My parents are allowed to live in the house until they die.
The issue arises that I’m in the middle of a very acrimonious divorce from a financially abusive husband, and he wants the value of the house taken into account for divorce purposes. My parents could live for another 20 years, he will inherit his parents house when his father dies, but I’m guessing my parents will get taken into account for settlement but his parents won’t due to the discretionary trust?

If you are just a trustee and not a beneficiary of the trust the house will not enter into the settlement. If you are a beneficiary, the court will consider the likelihood of the trust making funds available to you in order to meet any divorce settlement. If the house is the only asset of the trust, the only way funds could be released from would be to sell it, leaving your parents homeless. In that situation, I would not expect the court to take the house into account.

His future inheritance will definitely not be part of the settlement.

Thank you. I’m a trustee, but will obviously benefit when my parents die, Just not before. The house is the only thing in the trust.

The house is not an asset that you own. The trust is a separate entity. Until your parents die and you at that point become a beneficiary, the assets of the trust are entirely irrelevant to the divorce. The situation is comparable to thinking of the assets belonging to a charity that you are the charity trustee for - it would be laughable to think that such assets are your property to be distributed in the divorce. You are not the owner of the asset.

It’s a good example of why I always dissuade older clients from “giving the children the house” while they are alive to avoid care home fees. Firstly it’s not allowed anyway and secondly if the child divorces they are stuffed!

Thank you for your responses. This was done in 2002, and was done after advice from solicitors, so maybe things have changed?