Preservation of assets

Securing assets

Where there are concerns that a party intends to dispose of assets in a way that will defeat a claim for financial provision, or has already done so, immediate action may have to be taken to secure the assets. There are various ways in which this may be done:

  1. under section 37 of the Matrimonial Causes Act 1973 (MCA 1973) or the equivalent Civil Partnership Act 2004 (CPA 2004) provisions

  2. by an application for an interim order under the provisions of the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 20, or

  3. under the inherent jurisdiction of the court

Such applications may be expensive and high risk. Consideration should be given to other available options and the value of the assets in question in the context of the overall value of the parties assets, ie whether the applicant's claim may be satisfied from other assets.

See Practice Notes: Interim orders under FPR 2010, Pt 20 and Procedure for an interim remedy under FPR 2010, Pt 20.

Where a respondent in family proceedings is

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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