If you are worried that your husband or wife is taking steps to move assets to frustrate any claim you may have on divorce, it is important to take legal advice as soon as possible.
Obviously, everyone hopes for a straightforward and friendly divorce but unfortunately, there are times when one party may try to hide assets to prevent the other from sharing them.
The court has the power to prevent an asset being moved or disposed of by a freezing order or if the transaction has already taken place by make an “avoidance of disposition” order.
Alternatively, if there are sufficient other assets it can “add back” an equivalent value to the party’s share of the assets during the financial proceedings.
When will a court make an order?
Transfer of property to another family member.
Transfer of a property into a company.
Putting bank accounts in a different name:
Dissolving a company and transferring the assets to a new company to prevent the other party’s access to it.
How can I show that the action was taken to prevent my claim?
The timing of the action affects who has the burden of proving that it was made to defeat a claim.
If the disposition was made within three years of the application for financial relief being made, there is an assumption that it was made to frustrate the claim. The other party therefore needs to show that that was not their intention.
If it took place in the three years before the proceedings, the onus is on the person making the application to show that the intention was to defeat the claim.
If the disposition was made in good faith and for valuable consideration, (i.e., the appropriate value was paid), then an application cannot be made. In those circumstances, we would be looking at what happened to the money received.
The Judge will need to see evidence to show that the intention was to defeat the other party’s claim and that it would affect the order the court finally makes.
It is necessary to show a party is about to make disposition or real risk that they will do, if not prevented.
Who pays the costs?
As in most applications within financial proceedings, each party is normally responsible for their own costs. However, in some circumstances when the court considers there has been litigation misconduct the court may order one party to pay the costs of the other.