Imagine the scenario. You believe that you are happily married. Your spouse announces the marriage is over. You eventually go and see a solicitor, to try to resolve the financial matters. After weeks and weeks of requesting information from your spouse, your solicitor is finally sent some financial disclosure. You are shocked to discover that the aunt's property owned by your spouse is no longer owned; the boat has gone; the bank accounts have been cleared and there is very little left. Often, the first time we discover that assets have been disposed of is months after the disposition has happened when we get disclosure. However, all is not lost as it is possible to make an application to the Court to set aside a transaction or avoid property being disposed of, if the intention of the disposal or transaction is to defeat the other spouse's claim.
It may be, if there are enough assets, that the party can be compensated, as long as there are enough other assets to meet the claim. However, often this is not the case and there are procedures through the Family Courts to prevent such dispositions in the first place or, if the property, boat, money etc has been disposed of to set it aside and bring it back into the marital pot. The procedure is governed by Section 37 of the Matrimonial Causes Act and this sets out quite stringent criteria that must be satisfied, in order to persuade the Court that the disposal should be set aside. These criteria include:
- 1. The fact that there must be an application for financial relief before the Court.
- 2. That the party has to prove that the other party has disposed of an asset; that it was done with the intention of defeating the claim and, if it was set aside, financial relief or different financial relief be granted to the Applicant.
- 3. That it is a reviewable transaction namely for valuable consideration and that the third party acted in good faith.
- 4. The Court must be persuaded that even if the above has happened, that it should exercise its discretion and make the Order.
Many cases have gone before the Courts and quite often the third party who receives the boat, the property etc. is an innocent party. If they buy in good faith, why should they suffer?
This is a somewhat complex area of law and advice must be sought at the earliest opportunity, if you suspect that this will happen, or if it has already happened. Urgent applications can be put before the Court to freeze assets, so as to prevent properties being transferred; to prevent money being taken out from a bank account etc. However, it requires immediate action, as the longer it goes on, the harder it may be to track down the asset and recover the money.
At Clarion, we deal with many such applications and have experience in this field. I am an accredited member of Resolution, a family law association, and one of my areas of specialism is advanced financial provision. I can be contacted on 0113 336 3323 or firstname.lastname@example.org.
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