Freezing Orders and Emergency Financial Protection

What a Freezing Order Is and Who Can Apply

A freezing order stops a person dealing with particular assets, or with their assets generally up to a stated value, until the court says otherwise. In family cases it is sought by a spouse or civil partner who fears the other will sell, give away, mortgage or move money and property before the financial settlement on divorce is decided.

There are two routes. Section 37 of the Matrimonial Causes Act 1973 applies once proceedings for financial relief have been brought: where the court is satisfied that the other party is about to make a disposition, transfer property out of the jurisdiction or otherwise deal with it with the intention of defeating your claim, it may make such order as it thinks fit to restrain that step or otherwise protect the claim. Civil partners have the equivalent power in Schedule 5 to the Civil Partnership Act 2004. The Family Court can also grant a freezing injunction under its general power to grant an injunction where it is just and convenient, restraining a party from removing assets from England and Wales or dealing with assets wherever they are.

Section 37 also reaches back. Where a transfer has already been made with that intention, the court may set it aside if that would mean you receive financial relief, or different relief, and give directions for payments or the disposal of property. A disposition is reviewable unless it was made for valuable consideration to someone who acted in good faith and without notice of that intention. Claims by unmarried partners or under Schedule 1 to the Children Act 1989 rely on the general injunction power, and the court applies the same principles either way.

The Test the Court Applies

The court does not freeze assets simply because a divorce has started. In UL v BK [2013] EWHC 1735 (Fam) the High Court summarised the principles: whichever route is used, the applicant must show, by reference to clear evidence, an unjustified dealing with assets by the respondent, which can include threats, giving rise to the conclusion that there is a solid risk of dissipation to the applicant's prejudice. Such a dealing will normally support the inference that it was done to defeat the claim.

Section 37 helps with intention. Where the disposal took place less than three years before the application, or is about to take place, and would have the effect of defeating your claim, the intention to defeat is presumed unless the contrary is shown. The disposal and its effect must still be proved: suspicion is not enough, and holding assets in offshore structures is not by itself an unjustified dealing.

The court distinguishes an order preserving a specific thing from an order freezing money up to a figure, which can catch every bank account the respondent has. For the second kind every safeguard applies in full: the order must say clearly what the respondent must and must not do, it normally allows a stated sum for living expenses and legal advice, and the applicant must undertake to pay any damages the respondent sustains which the court considers should be paid.

Evidence and Common Problems

An application for a freezing injunction must be supported by affidavit evidence setting out the facts relied on, including all material facts the court should know, and the source of any matter of information or belief. In practice that means dated statements, Land Registry entries, listings, company filings and messages, with a clear account of how you know each fact.

Common problems we see:

• Belief rather than fact: a statement that you fear money will be moved, without saying why, carries no weight.
• Documents taken from the other party: copying a spouse's private papers, emails or phone contents is unlawful, and your solicitor must return them unread. You may tell us what you remember, but the affidavit must say candidly where that knowledge came from.
• Asking for too much: an order over every asset, with no exception for living expenses or legal costs, risks being discharged.
• Applying without notice when notice could have been given: the court expects at least short informal notice unless it is essential that the respondent is not made aware of the application, and no notice at all only where there is powerful evidence that any warning would prompt the very step you fear, or there is literally no time.
• Leaving something out: on a without notice application you owe a high duty of candour, and a breach is likely to lead to discharge.

Assets abroad are not out of reach: the rules allow a freezing injunction over assets whether located within the jurisdiction or not, and the court can order the respondent to say where they are. Enforcing an English order where the asset sits is covered under divorce with overseas assets.

How a Freezing Order Application Works

1. Advice and route. We check that financial proceedings have been or can be issued, which power fits, and whether a Land Registry entry or an agreed undertaking would protect you without a hearing.
2. Evidence. We take your affidavit, exhibit the documents and, if the application is to be made without notice, set out why notice has not been given.
3. Application. The application is made by application notice under the Part 18 procedure (Form D11 in divorce, dissolution or separation proceedings) with a draft order; a court fee is payable, and you can apply for money off that fee through help with court fees if your savings, benefits and income qualify. Before the main application is started the court can act only where the matter is urgent or it is otherwise in the interests of justice.
4. Hearing. Unless it is essential that the respondent is unaware of the application, we give informal notice. An order made without notice fixes a return date, records why notice was not given and contains the undertakings and exceptions described above.
5. Service. The order, application and evidence are served on the respondent as soon as practicable, and the order is notified to any bank or third party holding the assets. Anyone notified who knowingly assists in or permits a breach is in contempt of court.
6. Return date. The respondent may apply to set aside or vary an order made without notice within 7 days beginning with the date the order was served, and anyone served may apply at any time to vary or discharge it. The court then decides whether the order continues, is narrowed or is discharged.

Other Urgent Protection While Your Case Runs

A freezing order is one tool among several, and often not the first. If the family home is in your spouse's or civil partner's sole name, your home rights under the Family Law Act 1996 are protected by registering a notice against the title, and a claim over other land can often be protected by an entry at HM Land Registry rather than an injunction: see family home on divorce.

If money is being cut off rather than moved, the court can order maintenance pending suit while the divorce runs and interim periodical payments in the financial proceedings, and a legal services payment order can require one party to fund the other's representation where the statutory conditions are met. See spousal maintenance and financial remedy proceedings.

Where the concern is dishonesty rather than urgency, see hidden assets and non-disclosure. Once a final order is not being complied with, the route is enforcement of financial orders, and section 37 also allows a transfer made to frustrate enforcement to be set aside. Child maintenance is arranged privately or through the Child Maintenance Service: see child maintenance advice. Controlling or withholding money can itself be economic abuse, and if you are at risk of harm a non-molestation or occupation order is a different application, explained under domestic abuse and injunctions. Call 999 in immediate danger, and the National Domestic Abuse Helpline is 0808 2000 247.

When Legal Advice Is Especially Important

Timing matters. Section 37 lets the court restrain a disposal that is about to happen. Once a transfer has been made, the application is instead to set aside a reviewable disposition or to freeze assets held abroad. If you have seen a listing, a transfer instruction or a message about moving money, take advice the same day.

The High Court has warned that a case which begins with a without notice order is usually poisoned from that point onwards.

Cases involving business assets in divorce or a high net worth divorce need particular care, because a badly drawn order can stop a business trading and expose the applicant to a claim under the undertaking in damages. If you have been served with an order, comply with it and take advice on varying or discharging it.

How RakLAW Solicitors Can Help

We act for applicants and respondents from our office at 42 Shad Thames, a short walk from Tower Bridge. We assess the evidence honestly before anyone applies, prepare the affidavit and draft order, and attend the hearing and the return date. Where an order is not the answer we say so; where it is, we draw it no wider than the evidence supports.

RakLAW Solicitors does not offer legal aid; our work is privately funded and our family law fees page explains how we charge. Court fees are listed in the official EX50 fees list. Call 0203 345 2000 or book an appointment for a free 15-minute consultation. RAKLAW Solicitors Ltd is regulated by the Solicitors Regulation Authority, SRA number 8007405.