Lauren Preedy – Head of our Divorce Team

Freezing Orders

Surprisingly, not everyone is entirely honest or sensible when it comes to providing financial disclosure in divorce finance cases (and civil partnership dissolution finance cases).

Sometimes one of the couple will fail in their duty to provide full financial disclosure.

Sometimes it is necessary to make an application to the court for a freezing order.

Grounds for a Freezing Order

In order to persuade the court to grant a freezing order, the person applying for that order will need to show to the court that:

  • they have a good arguable case
  • there is clear evidence of unjustified dealing with assets by the other party
  • there is a real risk of injustice if the order is not granted

in addition the person applying for the order needs to show:

  • that there is solid evidence to demonstrate the risk that assets will be dissipated if the order is not made. Believing that the other person might do something is not the same as solid evidence to demonstrate to the court that there is a risk.
  • The court will examine the evidence carefully to see whether the alleged dishonesty does point to a conclusion that the assets may be dissipated. The court will want to consider whether there are properly arguable answers to the allegations.
  • That there are offshore accounts or other structures where money could be moved to does not in itself mean that there is a risk that the assets will be dissipated. These days businesses and individuals having financial assets and structures overseas is not uncommon and someone may have overseas accounts which are perfectly legitimate. For example for legal tax planning or privacy.
  • Because every case is fact specific – the court will look at all of the factors and evidence together.

Freezing orders are generally limited to assets that are held in the jurisdiction – in our case England and Wales.

These applications can be made without notice if needed. A without notice application would be made if there was evidence to suggest that the other person would dispose of the assets if they became aware of the application.

These types of application can be difficult and potentially expensive. If an application is made when there is not sufficient evidence and the application is refused – then the other party may be able to obtain a costs order against the person applying.

The court may also take the view that a freezing order is not necessary if there are ample other assets which are safe and which would overall enable there to be a fair settlement. For example if an order was sought in respect of £100,000 worth of assets in a case where there were assets of say £10 million which were tied up in property or in some other way which would make them difficult to deal with, then the court would probably be unlikely to take the view that an order was needed – because even if the assets were disposed of – there would unlikely be a real risk of injustice.

On the other hand, if there is a real risk of injustice, and there is a good case with clear evidence – then an urgent application for an order may be the only way forward.

We have one of the strongest teams of divorce specialists in the south-west and are happy to assist.

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