Injunctions Part 2: Freeze and desist

Summary

Following on from my previous article on civil injunctions, I will cover injunctions in a family law context, focussing on freezing injunctions in matrimonial finance proceedings and applications under the Family Law Act 1996.

Freezing injunctions – when are they needed?

In the event of a marriage irretrievably breaking down, typical stages of a matrimonial finance dispute are as follows (post-proceedings being issued via a “Form A” being sent to the court and both parties completing their financial, “Form E”, statements):

A First Directions Appointment (FDA)

This will be the first time the parties attend court, and generally, the hearing is a way to narrow down and define the major issues upon reviewing the Form Es filled in by both sides (for example the value and party interest in any jointly owned property) and to try to save extra legal costs being incurred going forward. Parties must file and serve a financial statement no less than 35 days before the appointment, and a statement of issues, chronology, questionnaires, and a notice stating they are ready to proceed must be filed and served no less than 14 days before the appointment date.

A Financial Dispute Resolution Hearing (FDR)

This hearing is designed to allow both sides to freely discuss their respective positions as to distribution of the marital assets, with the court having updated and more complete financial disclosure. The Judge will give the parties a non-binding indication of what would likely happen to the distribution of the “marital pot” were the case to go to a final hearing. This indication often focusses minds and can help parties to reach a settlement, which can be approved by the Judge at the hearing.

Final Hearing

If the parties are still unable to come to an agreement after the FDR, a Judge (a different one from the FDR) will make a final decision at a final hearing. This will traditionally follow the procedure of a “trial”, where the parties give evidence and are examined by lawyers, closing speeches will be made by each side’s representative, and the Judge will give a final, binding judgment on the distribution of the parties’ assets.

During the proceedings (especially when disclosure seems to not be as forthcoming as it should be), it may come to light that one party might (for a variety of reasons) want to dispose (i.e. sell or spend) of assets to prevent them from being included in the marital pot and potentially being awarded to the other side. A typical example would be where it appears likely that a party holding shares abroad will attempt to sell them in the near or immediate future.

In this type of scenario, a freezing injunction application may be appropriate.

When can they be granted?

Freezing injunction orders can be granted as an interim remedy (often in conjunction with an order requiring a party to provide information about the relevant property or assets), most often by the High Court. They can be wide-ranging in nature, covering any sort of asset (e.g. property or bank accounts), can be made at any time during the proceedings, and can last for any time (although usual practice is until the conclusion of proceedings).

They are considered draconian in nature. They impose strict conditions and consequences for non-compliance (i.e. a custodial sentence, large fines, seizure of assets) on a respondent where technically they have not done anything yet, and the respondent is often not given notice of the application itself (for fear of the respondent then proceeding to carry out the action at the heart of the application).

As with civil injunctions, whether to grant the remedy is a matter for the court’s discretion (per the Senior Courts Act 1981 section 37(1) and National Commercial Bank of Jamaica Ltd v Olint Corp Ltd (Jamaica); American Cyanamid Co v Ethicon Ltd). The more recent authority of UL v BK (Freezing Orders: safeguards: Standard Examples) [2013] EWHC 1735 (Fam) emphasised the following factors that need to be considered in making a without notice application for a freezing injunction:

• The application must be supported by evidence and must include a statement as to why the application cannot be made on notice.
• An order can only be made if urgent or desirable in the interests of justice.
• An order not on notice can only be made if there are good reasons for not giving notice (e.g. notice would cause the subject matter of the order to be destroyed). Generally, there should always be some notice, even a telephone call.
• The applicant must make the fullest disclosure of all the relevant circumstances known to them, for and against their case, and whether of fact or law.
• An applicant must bring to the attention of the respondent, at the earliest practicable opportunity, the evidential and other materials on which the injunction was granted.
• Especially in a without notice application, numerous undertakings are required from the applicant (undertakings as to damages must be considered if appropriate).
• Where available and appropriate, independent evidence should be filed.
• In the case of a freezing order that covered all the respondent’s assets, all principles and safeguards appropriate to such orders must be adhered to (such as drafting any necessary exceptions into the order which would allow the party to pay their necessary day-to-day expenses).

Injunctions under the Family Law Act 1996

Injunctions under this regime can be made as stand-alone applications or as part of a larger case relating to the welfare of children or in matrimonial finance proceedings. The need for one may arise from allegations of domestic abuse and/or the wish for one of the parties to leave the family home, and also in relation to protecting a parent and/or child when they appear to be at risk from a partner.

Non-molestation and occupation orders

The two main types of injunctions under this regime are non-molestation orders and occupation orders respectively, although in practice they are often applied for concurrently. The court can make an order of its own initiative during proceedings if one is deemed necessary.

Non-molestation orders will prohibit the respondent from:

• “Molesting” the applicant or the relevant child/ren (molestation is not defined in the Act but some examples from case law include: acts and threats of violence, searching through the applicant’s belongings without permission, writing to the applicant in an abusive or threatening manner, and circulating explicit pictures of the applicant to media outlets).

Whilst an occupation order will generally:

• Exclude a perpetrator of domestic violence from entering the family home or a part of it, or regulate occupation of the family home more generally.

When will either or both be granted?

In considering an application for a non-molestation order, the court will have regard to section 42(5) of the Family Law Act, which states that the court must consider all the circumstances of the case, including the need to secure the health, safety and well-being of the applicant and/or any relevant child.

It is important to note that in coming to a decision the focus is not necessarily on the behaviour of the respondent in and of itself, but rather the impact of the alleged behaviour on the applicant and/or child.

An application also needs to demonstrate that there has been molestation, that the relevant person/s need protection, and that judicial intervention is needed to control the respondent’s behaviour.

In contrast, as occupation orders interfere or regulate the right of the respondent to live in their home (by either declaring, extending, or creating rights for the applicant regarding the family home, or regulating the occupation of the family home by the parties), they are more limited in scope depending on the status of the parties involved in the application.

For example, if the applicant is entitled to occupy the family home (mainly though legal or beneficial ownership, a contract, or “home rights”) then the chances of them being granted the application can be higher than when the applicant does not enjoy any of those legal rights to the family home (although this will depend on the facts of each case). It is important to establish the status of the applicant when making or responding to an application as this will inevitably influence the likelihood of success.

As well as this, the court considers section 33(6) of the act, which is comprised of: the housing and financial needs of the parties, the likely effect of an order or not on the parties, and the conduct of the parties towards each other and in general. The court also considers section 33(7), known as the “balance of harm test”, which says that if there is a risk of the applicant or child suffering significant harm from the respondent in the event of no order (with harm being broadly defined), the court must make an order (unless the relevant party is likely to suffer equal or greater harm if the order is made).

As regards section 33(7) it should be noted that only “entitled applicants” benefit from this mandatory provision. The lack of benefit from this provision is another hurdle for those not entitled to have to overcome in making an application, although the court will still have discretion to make an order based on the facts of the particular case.

Enforcement

For both, orders can last for a specified period or until further order, and breach of either is a criminal offence which can result in a custodial sentence (where the respondent has breached the relevant order without reasonable excuse).

Finally, undertakings can be given by the respondent in lieu of an injunction, although in practice undertakings should not be accepted where there is a high risk of domestic violence and a court is not likely to accept one in those circumstances.

Both the Civil and Family teams at Becket Chambers are experienced in representing clients applying for and responding to injunction applications and can also offer general advice on injunctions (our recent cases are available here). If you require advice or assistance with an injunction matter, do not hesitate to contact our team at clerks@becket-chambers.co.uk or more information is available here.