The recent Swiss case of  Rybolovlev v. Rybolovleva is frequently referred to as a trust or asset protection case, without looking at the underlying private international law issues.

The couple married in Russia in 1987, and did not sign any form of prenuptial arrangement in Russia, nor for that matter, more importantly a matrimonial property régime. The distinction is important.

They then moved to Switzerland in 1995, where, in the absence of specific arrangement, the mandatory régime for matrimonial property is the separation of assets, with a participation in those assets acquired during the marriage.

The Husband did not propose any change in or for that matter a redefinition or reassertion of the matrimonial property régime at the time they moved to Switzerland.

After taking legal advice in Switzerland,  ten years after they moved there,  in 2005, the Husband proposed a modification to their matrimonial property régime to his spouse, which curtailed or removed certain of her entitlement under the Swiss régime.

As the common law trained lawyer will by now have noticed, this is neither cricket, nor the MCC rules, nor for that matter a cricket pitch  as the English would understand it.

The then spouse refused on the basis that it was derisory, and as a result, the Husband transferred most of his personal assets into trust, with a view to 'carving' these out of his personal fortune.

In other words to the extent that the assets had been acquired during the couple's marriage the wife by then had an participating interest in them, under the Swiss matrimonial property régime, which he was effectively attempting to attenuate through asking her to sign a specific contract, and then seeking to defeat by removing assets from the régime through a trust.

Had the couple adopted specifically a different matrimonial property régime prior to taking up domicile or habitual  residence in Switzerland, the result could have been different.  Once they had arrived and established the matrimonial home and residence there, the new deal was deemed "done".

The husband as far as the Swiss were concerned, on those facts, had retained Durchscrift over the assets he had attempted to place in trust. Durchscrift is the same term employed in the concept of direct effect in European Law. In other words, the husband was considered to have retained full power and dominion over the assets he had placed in trust , which remained in fact subject to the Swiss régime de la participation aux acquêts he was trying to avoid. It is not merely a means of "piercing corporate veils" or any other form of trust arrangement. Certain comparisons to re Esteem:  In the matter of the Esteem Settlement (Abacus (CI) Limited as Trustee [2003 JLR 188] and the judgement of the Jersey Court have been made, but rather miss the point.

The Swiss Supreme Court in effect found that the criticism's made by the Husband of the lower Court's decisions, and his attempt to adduce the Hague Convention as introduced in Switzerland,  did not amount to sufficient to overturn those decisions, and should have been made at the level of the lower Court concerned

Rather than seeing the judgement as a misapplication of the Hague Convention on the Recognition of Trusts, which the Swiss have ratified and brought into force, it should rather be seen as a warning as to the risks of not taking legal advice prior to moving to a jurisdiction where the matrimonial property régime is mandatory and actually modifies each spouse's capacity to dispose of property independently, without regard for the other's new rights in the state of residence.

For example, another jurisdiction, spouses moving to France, after ten years continuous residence there. Unless they have specifically opted or stated to the contrary can be considered to have submitted their marriage to the French default régime, the communauté légal, which in this case would have had a similar effect to the Swiss régime.

In other words, beware of moving to a jurisdiction where  in time, "what was yours is no longer all yours and what is mine remains my own".