Financial proceedings in divorce are often complicated and disputed. Full and frank disclosure is necessary to reach a settlement, but in some cases, a party may fail to give disclosure or be unwilling to obey orders and may actually make efforts to defeat the claims of the other party.
Avoidance and disposition orders have often not been heard of by clients but to an experienced matrimonial solicitor, they are an important part of the arsenal that will overcome such difficulties and result in a fair and equitable settlement.
These consist of:
- The power to prevent or set aside a disposition. This effectively gives the Court 2 remedies where certain circumstances apply:
- The pre-emptive power of the Court to prevent a disposition before it has been made. For example, if an aggrieved spouse threatens to transfer assets to another party or to spend lump sums, they can be ordered not to do so and even a bank and other financial institutions can be served with the order, resulting in a freezing of the transactions.
- The power to undo or set aside any disposition already made. This is where a spouse transfers assets to another party, the party to whom the assets are transferred can be ordered to return them so that the funds are still available in the financial proceedings.
- A power similar to the above but under the inherent jurisdiction of the Court.
There may be occasions when the evidence does not support a section 37 application but the justice of the case still demands that there should be injunctive relief. In such cases, the court may be able to invoke its inherent jurisdiction if the facts support the case.
- The power to make a freezing application. This is an injunction to prevent a party from removing funds or property from the jurisdiction of England or Wales until the matter is finalised.
- The power to make a search order. This can be granted where it appears that a party has in their possession documents or other material relevant to the financial proceedings, which has not been disclosed and there is a strong possibility that the party will dispose of them before the matter can be considered.
The law and practice relating to such orders are complicated and specialised but these orders are particularly useful in protecting business assets in a divorce. It is essential to take advice from a specialist matrimonial lawyer who is experienced in this area and can guide you and advise to ensure the best possible outcome.