‘However, Divorce Lawyers and Judges are well versed in the wide range of devious tactics that people try to employ to hide their wealth,’ says Peter Lewis, Partner and Head of Family Law, at QualitySolicitors Parkinson Wright. ‘The Family Court is aware that this happens, and there are steps that can be taken to protect your entitlements. Often these steps will need to be taken urgently and therefore obtaining early expert advice is essential.’
What is dissipation in the contest of a divorce?
Dissipation of assets in divorce means that one spouse has sold, transferred, or otherwise disposed of property that should be taken into account when considering the division of matrimonial assets to arrive at a fair financial settlement.
Some of the common ways in which a spouse may try to dissipate assets include:
What can be done to stop dissipation?
The saying, ‘prevention is better than the cure’ is true when it comes to dissipation of assets in divorce. Obtaining early expert advice is beneficial in most circumstances, however it is often vital in this situation.
Our family law team has a wealth of experience and will be able to advise you on the best steps to take for your circumstances. This may mean applying to the court for an urgent freezing order.
A freezing order is a type of injunction made by the court which will prevent the unauthorised dissipation of the assets. When making an application, it is necessary to explain the reasons why the injunction is needed. This usually includes details of the matrimonial assets, what assets are suspected to be at risk, and the reason for the belief that the assets are at risk.
This order is typically applied for on without notice basis, meaning that your spouse is not notified of the application until after the order has been made. An initial order is usually only made for a brief period of time, with a further court date being set to allow them to respond to the order.
The court will permit your spouse to access some of their assets while the order is in place. This is to allow them to continue with their usual day-to-day living expenses, including the management expenses of any business they may own.
If your concern relates to the transfer of land, then an alternative option may be to register an entry at the Land Registry against the disputed property. .
Taking proportionate steps
It is important to appreciate that not all assets that are transferred or sold will amount to a dissipation where legal action is warranted. For example, if your spouse is selling land or property at a market value, then although that particular assets may no longer be available, a monetary sum will instead be available. In these circumstances it may be more appropriate to seek an undertaking that the balance monies from the sale are held pending resolution of the divorce. Preserving the actual asset is unlikely to be needed.
If your spouse is gifting an asset to a friend or family member then the value of that gift needs to be weighed up against the value of the overall assets available. For example, it most likely will not be proportionate to seek a freezing order if your spouse intends to gift an asset which only makes up five per cent of the matrimonial assets available. This is because there are sufficient assets left over to still allow for a fair settlement or division of assets to be achieved.
What if assets have already been transferred?
The court has the power to make adjustments in any order to reflect that one spouse may have been disadvantaged by the actions in dissipating assets of the other spouse. Typically, the court will put the spouse who has been wronged into the position they would have been, had it not been for the dissipation.
That is all well and good when there are still sufficient assets left to allow for this. But, what if the dissipated assets make up the entire or a significant portion of the matrimonial assets? In those circumstances, the court can look to set aside the transaction, which means it can cancel or revoke the transaction to bring the assets back within the matrimonial pot. To do this, the court must be satisfied that the transaction occurred with the intention of defeating a matrimonial claim.
How we can help
If you are worried about your spouse dissipating matrimonial assets, or have noticed unusual financial behaviour, it is vitally important that you obtain urgent advice from one of our family law experts, please contact Peter Lewis or a member of the family law team on 01905 721600 or via email email@example.com
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.