In theory any assets can be frozen. Typically the types of assets involved in such cases include property and bank accounts. A Freezing order can even include assets not yet in existence, like an imminent award of damages for personal injury.
Whilst freezing orders can be extremely effective, they are not always necessary. More often than not, the threat will turn out to be idle, or just badly-thought out and so easily dealt with by a robust letter, and an undertaking by the spouse – i.e. a legal promise to do (or not to do) something.
If a more formal approach is required, top family lawyers working on your behalf can ask the family court to use its general power to preserve specific family assets. This is usually the more appropriate and cost-effective approach, because such applications are not subject to the same rigorous safeguards as freezing orders.
These types of orders are typically made by the High Court but District Judges and Circuit Judges also have jurisdiction to make them.
The court’s jurisdiction to grant a freezing order is derived from section 37 of the Senior Courts Act 1981, but the legal principles behind freezing orders mean that they are only made if the court consider it is ‘just and convenient’ to do so – in other words, it boils down to whether a particular judge, on any given day, can be persuaded that it is ‘fair’ to make one.
There is little doubt that an application to the Court for a freezing order should not be undertaken lightly. In cases when it is entirely necessary to keep certain assets and there is a clear intention on the part of the other party to get of them, this remedy provides real teeth. It is, however, crucial to take specialist independent legal advice from a family solicitor with experience of making these types of applications.
The Court has to be satisfied that the other party is about to sell or otherwise get rid of an asset with the intention of preventing someone else from receiving any financial benefit.
It is crucial to comply with the strict conditions that apply before trying to obtain a Freezing Order. Those conditions are set out in detail in UL v BK – a 2013 High Court judgment. In summary, the points made within this are:
As long as the Court deems fit. Freezing orders are usually made pending the resolution of proceedings; they are typically granted for somewhere between seven days and two weeks. Following on from the end of the order, the court may either extend or discharge it. This means it can last longer in certain circumstances.
An order freezing assets held in other countries is only likely to be made where it is likely that the foreign courts will cooperate.
Usually the assets in question are located in England & Wales, and threats have been made to move them off-shore, raising the possibility of an application for a domestic freezing order. In an increasingly global economy however, our clients’ assets are often already located in another jurisdiction, and the concern is that any onward movement will make them virtually untraceable.
In such cases, a worldwide freezing order may be appropriate.
It is possible to remove a freezing order provided that you can argue effectively against it. Most that are discharged are discharged if the claimant did not correctly comply with the obligations of making one; they may, for example, not have made a full and frank disclosure. Alternatively, a solicitor for divorce may convince the court that there is no good arguable case against you, and no risk to the assets in question.
It is very important to take immediate legal advice from family law specialists with specific expertise of dealing with freezing orders.
Someone who disobeys a freezing order is likely to be in contempt of court. If that happens, the offending party can be sent to prison, fined or have their own assets.
Stowe Family Law are the only national law firm dedicated entirely to family law and divorce. Our solicitors’ family law expertise in cases just like yours will allow them to handle your case with the care it deserves.
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