INJUNCTION TO FREEZE ASSETS
Most people will sort out the fair division of their accumulated wealth on divorce by agreement. However it is not uncommon for the initial reaction to the prospect of resolving finances on divorce for people to assume they should be hiding their assets.
Fundamentally the parties to a divorce must be totally honest and transparent on the subject of money and assets. After all without the facts in front of you it is impossible to determine the fair split.
If one or other spouse is tempted to hide assets and not disclose them the courts have wide powers to ensure that there is full financial disclosure and that assets are preserved. If one of you is found to have hidden an asset then the courts take that very seriously. The person doing it can be penalised for example by being ordered to pay the other's costs, or being given a less favourable settlement. The powers also extend to preventing assets from being transferred or to get them back after transfer.
If you think your spouse may try to dispose of assets you need to act quickly. Take legal advice straight away and act decisively:
- Seek an order under s.37 of the Matrimonial Causes Act 1973 – either to prevent the disposal of assets and/or to require assets already disposed of to be transferred back.
- A freezing order – similar to the one above but with wider application in that it prevents the disposal of assets. The Court's powers can extend to assets held abroad or which have not yet come into existence such as a pension that is about to be paid out.
- Search orders - used rarely but can be extremely effective in getting information about assets that have been hidden. They are very expensive to get and implement and are likely to be appropriate in cases where there is a lot of money at stake and there has been very serious non-disclosure.
Care must be taken when following up your suspicions and in such circumstances you must bear in mind the guidelines arising from the 2010 case if Imerman. These guidelines identify the level of self-help which is permissible. It highlighted that if you go about getting information or documentation in the wrong way you may be committing a criminal offence, punishable by fine or imprisonment. This applies as much to gaining access to your partner's computer.
Doing any of the following may also be an offence:
- Using force to break into a locked office, briefcase or filing cabinet
- Opening or intercepting your partners mail (even if it was permitted practice during the marriage)
- Taking your partner's papers with the intention of permanently depriving him/her of them
You may face a claim under civil law if you:
- Take anything that is clearly private and has no relevance to your finances e.g. a personal letter to or from a relative or friend of your partner
- Take copies including making detailed notes, of any paperwork that relates to your partners personal or business finances.
The law in this area is both complex and not entirely clear. While the family courts are keen to ensure people are not allowed to get away with hiding their assets you and your legal team must operate in accordance with the general civil law as well.
To assess what action you should take in any given circumstances give Spectrum Family Law a call to arrange an urgent appointment for further advice.
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