 |
| |
|
 Stopping the spouse from selling the assets |
|
 |
|
 |
|
In property settlement proceedings the court is required to take account of the value of the party's property as at the date of hearing. If either spouse sells marital assets without the knowledge and consent of the other party or without a valuation of the asset's worth this could have a major impact on the overall assessment of the property pool for division. Marital assets include the property purchased by the parties jointly and may also include those assets registered or owned by only one of the parties.
In order to restrain a party from selling the assets it is necessary to obtain an injunction. An injunction is an order made by the court restraining a party from doing some act. They can be made to cover a specific period of time only or indefinitely. Injunctions made by the Family Court are not usually permanent and normally the court will make an injunction in an attempt to preserve issue until the matter can be heard in court on a final basis.
When seeking an injunction an application must be made to the Family Court specifying the orders which are requested. The granting of an injunction is solely at the discretion of the court. In exceptional circumstances an injunction order may be made on an ex parte basis (where one party has not been informed that the other party is seeking the order). Normally each party will be given the opportunity to present his or her own case to the court. By their very nature, applications for injunctive relief are either urgent or required in a short amount of time. It is even possible to have an interim injunction obtained over the phone in extremely urgent matters.
In order to obtain an injunction it is first necessary to convince the court that it is just and convenient to do so. The effect that the injunction may have on a third person (someone who is not a party to the proceedings) will also be considered. The court cannot grant an order which directly effects a third person or the interests of a third person.
By 'just and convenient', the court must be satisfied that the basis upon which the injunction is sought is not frivolous or vexatious and that there is a serious question of fact to be tried. In other words, the court will not grant an injunction to someone who is applying for one merely to annoy the other party and create havoc.
The court must also be satisfied that there is an actual risk that the other party will and does intend to dispose of assets in order to defeat a judgement before it will order an injunction.
In order to obtain an ex parte injunction the court must be convinced that there are special circumstances present. An ex parte order will only be granted if there is a real and urgent need to preserve property and will generally only remain in force until such time as both parties can come before the court and present their case. Ex parte orders are most appropriate where the service of the application would only alert the other side and damage may be done before the matter goes to hearing.
Once an injunction has been granted the court can require that either party make an undertaking referred, "the usual undertaking as to damages" which basically provides that that party agrees to pay for any damages which may have been caused by the granting of the injunction. Damages which can arise from the granting of an injunction can include loss of business confidence, loss of opportunity, etc.
The court has the ultimate discretion to grant an injunction or not to enforce an undertaking of damages if the circumstances mean that to do so would be unfair or lead to an unjust result.
February 2001
February, 2001
|
|
 |
|
