What Is A Freezing Order Used For In Divorce Proceedings?

During a divorce, a common occurrence is that one partner will attempt to dispose of or sell assets to reduce the number of assets they are holding at the time of divorce. This will then affect the potential claim upon assets during divorce proceedings because it reduces the assets available in the matrimonial“pot”. Freezing orders (also known as freezing injunctions) result in the assets of one party within the divorce being “frozen” in the sense that the party holding the asset cannot transact with the asset unless permitted by the court. The person controlling the asset might be a party to the proceedings (as is often the case with land property), but can also be a third-party such as a bank (in the case of cash deposits), or an employer (in the case of employee benefits).

What is a freezing order?

The power to grant a freezing order is derived from one of two sources: section 37 of the Matrimonial Causes Act, 1973; or section 37 of the Senior Courts Act.

A freezing order is technically an interim (temporary) injunction employed in urgent situations where the applicant suspects that the respondent is likely to dispose of valuable assets before a claim upon assets can be completed. Some of the common examples of assets being disposed of include:

  • Spending or moving savings into a third-party bank account
  • Selling or remortgaging a property
  • Moving assets out of the UK
  • Moving assets to corporate shell companies, tax havens etc.

A freezing order will “freeze” certain assets that the respondent holds, either individually or jointly with the applicant. This will mean that these assets cannot be moved or tampered with during the time that the order is active which will usually be at the finalisation of a divorce.

The typical form of wording of a freezing order is:

Until the return date or further order of the court, the respondent must not remove from England and Wales or in any way dispose of, deal with or diminish the value of the following assets which are in England and Wales, namely:

[List assets]

This order applies to assets (whether or not specifically listed) which are in the respondent’s own name and whether they are solely or jointly owned. For the purpose of this order the respondent’s assets include any asset which they have the power, directly or indirectly, to dispose of or deal with as if it were their own. The respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions.

[List exceptions to the order]

How is a freezing order used in divorce proceedings?
The goal of a freezing order is to suspend the assets of the respondent long enough for a claim upon assets to be completed. It is therefore an interim (temporary) measure. A freezing order can only be granted with evidence against the respondent that indicates they have already or are likely to attempt to, hide or dispose of valuable assets before a claim upon assets can be made. The idea is that, with the assets of the respondent being frozen, divorce proceedings can continue without the risk of potential changes in the asset “pot”.

How is an application for a freezing order filed?
An application for a freezing order needs to be filed with careful consideration. This is because the application needs to show that:

  • There is an arguable case for a freezing order
  • There is a real risk of dissipation
  • The assets concerned are within the jurisdiction of the court
  • It is just and right to grant a freezing order

(see Crowther v Crowther [2020] EWCA Civ 762 at [47])

The application will often need to be made on an ex-parte basis. This means that the application will be made to the court without the respondent being notified. On some occasions, an application can be made where the responding party is not made aware of the order until it is granted. This would require significant thought and clear evidence that even notifying the responding party could cause injustice to occur.

How long will the respondent get to respond?
Once an ex parte (without notice) freezing order has been granted, the respondent will usually be given some time (a few weeks) to respond. This gives them time to get legal advice and prepare arguments to discharge or vary the freezing order. Because of the limited time available, the respondent will need to act quickly.

How our lawyers can support you in the divorce process?
Demstone Chambers, are family law barristers specialising in matrimonial finance (also known as financial remedy proceedings). We have many years of experience with divorce and family law-related issues, including freezing orders. We are a barristers chambers offering our services in London, Birmingham, and the surrounding areas. If you are applying for or defending against a freezing order, we can help. We can also assist with full representation in family court financial remedy proceedings generally, should this be required. To find out more about our services and how we can help you, get in contact today.


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