It might be cold, but the high court is not freezing

In divorce cases, it is sometimes a concern that one spouse might either spend or hide all of the money so that the other spouse can’t get a share of it.  When some of the assets are abroad, the concern can be even greater. 

The Freezing order 

It was against that background that in the case of J v H [2022] EWFC 133, the High Court was invited to consider an application for a freezing order from a husband identified only as ‘J’.  His solicitors wrote to his wife asking that she promise the court not to dispose of any assets currently held in her name.  

Although the wife’s solicitors confirmed that she wouldn’t dispose of any of her assets other than for personal or business purposes that didn’t satisfy J and he applied to the court ‘without notice’ for a freezing order.  Without notice means that the wife was not told about the application.  The judge refused to grant the order sought and listed a full hearing. 

In the High Court, the judge was scathing of the husband’s application.  He dismissed it and ordered the husband to pay the wife’s costs on the basis that the husband had not followed the law correctly and, crucially, suspicion or anxiety on the husband’s part was not sufficient to grant a freezing order.  The court is concerned with evidence.

The judge reminded the parties what the law said:-

1. The court has a general power to preserve assets through the making of freezing orders;

2. It is for the applicant to show ‘by reference to clear evidence' that there has been an unjustified dealing with assets (or threats of unjustified dealings with assets) that would give rise to the conclusion there is a solid risk the assets might be dissipated so as to prejudice the applicant;

3. If there is to be a without-notice application it is incumbent on the applicant to show why there is exceptional urgency.

In this case, although the wife held all of the assets of the marriage there was no such evidence and therefore the application was entirely misconceived.  The judge did say that the husband didn’t need to pay the costs until the overall case had been determined (because he had no money to do so).

The Conclusion

What we can draw from the conclusion of this case is that suspicion is not enough.  The courts base findings on evidence, not on supposition, and if someone is looking to freeze the assets of their spouse they need to have a good reason rather than just a general sense of mistrust.  

If you are suspicious of your spouse and concerned about your assets please call for a free 15-minute chat to discuss on the number below or alternatively fill out an enquiry form. 

At Birkett Long, we aim for an amicable divorce and adopt a holistic approach to family breakdown. Typical UK divorce has changed with the introduction of no-fault divorce. Should you wish to discuss issues concerning divorce, children or finances, please do not hesitate to contact me on 01206 217320 or via email at philip.hoddell@birkettlong.co.uk 

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