FREEZING ORDERS – What Are They?

Many parties worry that within divorce proceedings their spouse will be untruthful when providing their financial disclosure, or will look to ‘hide’ assets. This is more common than most think, especially if the financially weaker party did not have much input in their finances during the marriage. In many cases, if parties have been separated for some time, the wealthier spouse may have been hiding assets and disposing of funds for months. In such cases, it is important to act quickly and seek the advice of a solicitor. Freezing Orders are an equitable remedy that can assist to ensure a fair financial settlement.

What is a Freezing Order?

A Freezing Order (previously known as a Mareva Injunction) is an interim injection that prevents a spouse from disposing or dissipating assets.

How long do they last for?

It is entirely at the Court’s discretion as to how long they deem fit, however they are usually made pending resolution of proceedings.

What assets can be frozen?

In theory, all assets can be frozen. In most cases, bank accounts and property are targeted, simply because they are the most valuable. Interestingly, assets that are yet to be realised can also be included, such as a pending inheritance.

It is vital that you obtain solicitor’s advice prior to making an application as there are crucial conditions that have to be complied with. Should an application be issued without following the correct procedure, the Court may deny your application and present you with a costs order as a penalty!

What do I need to apply?

The Applicant will have to produce strong evidence and facts to convince the Court that there is a real risk of assets being disposed of. Not only that, should the assets be dissipated or disposed of, such will severely prejudice the Applicant. Speculation is not enough for an application to be successful.

What are the requirements;

• Substantial evidence – it is vital that the Applicant presents an arguable case. This can include evidencing intention of the Respondent to dispose of assets, evasion of your spouse or complete refusal to co-operate with reasonable disclosure.
• The Applicant must have a substantive cause of action against the Respondent.
• There must be a real risk of dissipation of assets.
• It must be just to grant the order. The Court will assess conduct of both parties, rights of any third parties that may be impacted if an order is made and whether granting the order would provide disproportionate hardship to the Respondent.

Can an Order be made without notice?

Freezing Orders can be granted without notice to your spouse providing there is powerful and compelling evidence to support the Applicant’s application. However, a without notice order can be withdrawn if the Applicant has been untruthful in their application.

What if my spouse breaches the Order?

If your spouse is found to have breached the order, they will be in contempt of Court. This carries severe penalties, which include; being fined, you may have your assets seized, or imprisoned.

A Freezing Order is a very powerful tool and the Court will only look to make an order if there is a real risk of significant financial hardship.

It is crucial to obtain solicitors advice before an application is issued due to the strict conditions that all parties have to comply with, to prevent your application from being denied.

If you wish to discuss this further, feel free to give us a call and one of our family law solicitors will be able to assist.