The extent to which future inheritance should be considered when determining a fair distribution of family assets on Divorce will of course always depend on the individual facts of each case. However, there are established principles which make it clear that in the normal course of events a party’s inheritance prospects should be disregarded by the Court. This is due to the uncertainty both as to the fact of inheritance and as to the times at which it will occur.
Both these uncertainties make it impossible for the Court to consider an inheritance prospect as property which a party is “likely to have in the foreseeable future”. When dealing with financial assets on Divorce a Court can consider resources a party is likely to have in the foreseeable future.
There was a recent case in the Court of Appeal Alireza –v- Radwan and Others concerning the fact that the wife was likely on the death of her father to become a multi millionaire in her own right and whether the Judge who dealt with the initial hearing was right in law to have regard to the wife’s future inheritance as a resource that she was likely to have in the foreseeable future.
The main issue for the Court to consider was whether the wealth of the wife’s father should be taken in to account when deciding an appropriate division of assets upon the parties Divorce.
The facts of this case are unusual due to the extreme wealth the wife was likely to inherit. The Court decided that it was wrong of the initial Judge to have taken into account the
wealth of the wife’s father and in particular her likely future inheritance when deciding what share the wife should receive of the matrimonial assets of her marriage upon Divorce.
This case was also unusual because under Saudi Arabian “forced heirship” laws, the wife undoubtedly was going to receive a very substantial sum upon her father’s death.
The husband argued that this was a resource. The Court of Appeal considered that the wife’s inheritance prospects due to the concepts of “forced heirship” did not have the same
uncertainty as a Will that was subject to English law and was therefore capable of being a “financial resource” which the wife “has or is likely to have in the foreseeable future”.
However, the Court of Appeal went on to state that this finding did not mean that it was inevitably appropriate for the Court to make an Order whereby the meeting of the needs of the wife is in any way dependant upon the prospective inheritance. The fact that the wife’s father had a life expectancy of at least sixteen years was a fact for the Court to consider.
In conclusion therefore, the Courts have been unwilling to attach much weight to the existence of a property that a party may inherit because it is uncertain whether or not their expectations will be fulfilled.
The Court does however have the power to adjourn an application until the value of the anticipated inheritance is known. Adjournments of this nature are extremely unusual as they fly in the fact of the Court’s duty to dispose of cases fairly and in good time.
Sometimes the Court will view a prospective inheritance as a sort of background factor to be taken into account lightly when considering an overall analysis of fairness.
Therefore each case depends very much on its own individual facts.