Once an asset has been moved overseas, placed in somebody else’s name or converted into funds that are difficult to trace, achieving a fair financial settlement may become considerably more complicated.
A freezing order can protect assets while the family court decides how the finances should be divided. However, it is a serious restriction upon a person’s ability to deal with their own property and will not be granted merely because one spouse distrusts the other. The applicant must present credible evidence of a genuine risk that assets will be moved, concealed or disposed of in an attempt to defeat their financial claims.
When might a freezing order be appropriate?
A freezing order, sometimes described as a freezing injunction, prevents a person from dealing with specified assets or assets up to a stated value. The court’s powers are broad enough to restrain somebody from removing assets from the UK or dealing with assets situated elsewhere.
Under Part 20 of the Family Procedure Rules, an interim remedy can be granted during proceedings and, where the matter is urgent, before the main application has been issued. Section 37 of the Matrimonial Causes Act 1973 also allows the court to protect a claim for financial relief where one spouse is about to dispose of, transfer, or otherwise deal with property intending to defeat the other spouse’s claim.
Suspicion is not enough to freeze assets
An applicant must usually establish more than a general fear that their spouse cannot be trusted. Freezing orders are sometimes described as a particularly powerful or draconian remedy because they interfere with the respondent’s property before the financial dispute has been finally decided.
The court will want to understand what assets exist, what the respondent is allegedly doing, and why that behaviour threatens the applicant’s financial claim. The evidence should be specific enough to separate a genuine risk from speculation.
Useful evidence might include bank statements showing unusual withdrawals or transfers, Land Registry documents revealing an unexpected transaction, correspondence with estate agents, company records, investment statements, or messages discussing plans to move money.
Evidence can also come from conversations, although the applicant should explain when the conversation took place, who was present and, as accurately as possible, what was said. A threat to leave the country with all the money may be relevant, for example, especially when supported by practical steps such as closing accounts, arranging an overseas move or marketing property.
Anxiety about disappearing assets does not give one spouse permission to guess passwords, secretly enter a private email account, or remove confidential documents from a business. Improperly obtained material can create separate legal and evidential difficulties, so advice should be obtained before accessing or copying information.
Previous financial behaviour may reveal the true level of risk
The court is entitled to consider the respondent’s previous conduct when deciding whether there is a real danger of assets being dissipated. A history of secret transactions can make a current concern more convincing.
Previous dishonesty in financial disclosure may also be relevant; this may include undeclared accounts, conflicting explanations, and the use of nominees, which can all affect the respondent’s credibility. The court may take a particularly serious view where a spouse has already ignored an undertaking or attempted to avoid an earlier restriction.
That said, past behaviour does not automatically justify an order; a transfer made several years earlier for an identifiable business or family reason may say little about the present risk. Similarly, the fact that somebody owns overseas assets, travels regularly, or has family in another country does not by itself prove they intend to defeat a divorce settlement. The court must assess the evidence objectively rather than treating foreign connections as inherently suspicious.
Can a freezing order be obtained without warning the other spouse?
A without-notice application may be justified where notification would give the respondent an opportunity to complete the threatened transfer. If funds can be moved electronically within minutes, informing the account holder several days before a hearing could make any later order ineffective.
The absence of the respondent places an exceptionally demanding duty upon the applicant. They must give the court full and frank disclosure, which means presenting all material facts, including those that weaken their own case or support the respondent’s likely explanation. The hearing is not an opportunity to tell only one side of the story.
How quickly can the court consider the application?
Urgency is decided by the court rather than by either spouse or their solicitor. Labelling an application urgent does not make it so, and the judge will look at when the risk became known, when the proposed transaction is expected to occur, and whether a short delay would make effective protection impossible.
Unexplained delay can undermine the assertion that an emergency exists. If an applicant knew about a proposed sale for three months but waited until the week before completion to seek an injunction, the judge is likely to ask why the application was not made earlier.
Where there is no immediate transaction or deadline, the application will usually proceed on notice and be listed according to the court’s ordinary timetable. Depending upon the local court, the complexity of the evidence, and whether directions are required, this may mean waiting several weeks and sometimes longer. It is therefore safer to describe any non-emergency timescale as case-specific rather than assume that a hearing will occur within a fixed number of days.
Even when a first order is made very quickly, it is only the beginning of the process. A without-notice order must include a return date for a further hearing at which the respondent can attend. There is also a requirement that the applicant serve the application, supporting evidence and order on the respondent as soon as possible.
What restrictions can the order impose?
The wording will depend upon the risk that the court is trying to control. An order might prevent the sale or transfer of a particular property, prohibit withdrawals from an identified account, or stop shares from being transferred to another person. A broader order may prevent the respondent from dealing with assets above a specified total value, whether those assets are held in the UK or overseas.
An order should not ordinarily prevent reasonable living expenses, legal costs, or legitimate business activity. Appropriate exceptions can be included so that the respondent is not left unable to buy food, pay the mortgage, or keep a company trading. The objective is to preserve assets, not punish somebody before the financial case has been decided.
Breaching a freezing order can amount to contempt of court where the consequences may include a fine, seizure of assets, or imprisonment. A person served with an order should therefore obtain advice immediately rather than making their own assumptions about what it permits.
The respondent can challenge or vary the order
A spouse affected by a without-notice order will have an opportunity to respond at the return hearing and can ask for the order to be discharged entirely or varied so that ordinary expenditure and legitimate transactions can continue.
The court may continue the freezing order, change its terms, or bring it to an end. It can also give directions for further evidence and decide who should bear the costs of the application.