Law Articles

Preservation of Assets 20/06/2024

When there are concerns that a party intends to dispose of assets in a manner that will undermine a claim for financial provision within divorce or dissolution proceedings, or has already done so, immediate steps may need to be taken to secure the assets. Several methods can be employed to achieve this:

Freezing Orders (Mareva Injunctions)

Freezing orders, historically known as Mareva injunctions, serve as an interim remedy designed to prevent a party from removing assets located in England and Wales or dealing with assets regardless of their location. The applicant must demonstrate a good arguable case against the respondent and a real risk that judgment will go unsatisfied due to the respondent’s disposal of assets, or that refusal of relief would result in a real injustice. In exceptional circumstances, freezing orders may be issued concerning assets outside the jurisdiction, requiring additional conditions. These applications are typically made without notifying the other party.

Search Orders (Anton Piller Orders)

Search orders, historically known as Anton Piller orders, are often issued alongside freezing orders. They permit the applicant to enter the respondent's premises to search for and preserve evidence that may otherwise be disposed of or destroyed. A supervising solicitor must serve these orders, which are subject to very strict conditions.

Restraining a Party from Leaving the Jurisdiction

A writ ne exeat regno or passport seizure order aims to prevent a party from leaving the jurisdiction when there is a risk they might leave with assets or avoid complying with a court order. Such applications are typically considered in cases with an international dimension where the matrimonial/civil partnership assets are substantial, and the circumstances are exceptional. It is crucial to carefully consider the court’s criteria, human rights implications, and a cost-benefit analysis of such an application.

Avoidance of Disposition Order

The court also has the power to issue an avoidance of disposition order, which sets aside a transaction that has already occurred. If no divorce or dissolution petition exists, one must be filed, and the applicant must submit a Form A, along with an application notice and supporting affidavit. These applications are generally expensive and high-risk. It is important to consider alternative options and the value of the assets in question relative to the overall value of the parties' assets, to determine if the applicant’s claim might be satisfied through other assets.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.