Injunctions – how to protect assets
When a separation occurs, spouses can sometimes act in unexpected ways. This may involve assets being taken, whether it be cash spent, shares sold, mortgages extended, or real estate sold. Once assets are gone they can be very hard to retrieve. So, in these urgent situations what can be done to protect property?
The legal remedy from the court is an injunction. This is an order that restrains a party from depleting assets prior to a final property settlement.
A recent case
In a recent Family Law case such a situation was considered when the mother sought an injunction against the father, restraining the father from further depleting his funds invested in an overseas bank account. The mother alleged that the funds held overseas had already been depleted by withdrawals by the father. The father claimed that his legal fees, expenses for the children and his child support liabilities may soon exhaust the remaining funds as he had a weekly “shortfall” after payment of expenses from his income.
The net asset pool was modest and principally comprised of assets held by the father overseas in the amount of EUR 114,823 (AUD$171,561). The mother sought final orders that she should receive 80% of the non-superannuation assets and 80% of the father’s superannuation. She submitted that due to the depletion of funds already by the father the final outcome she sought would now be unlikely.
The court has broad powers to grant injunctions to preserve the property of parties. In this case the court referred to previous case law that stated that such injunctive relief must be “proper” which means “reasonable and just in the circumstances”. The court, therefore, must be satisfied that it is ‘just or convenient’ to grant such an injunction.
The court held that the applicant needs to provide evidence to establish there is a real risk of disposal of an asset and that would defeat an anticipated property settlement entitlement.
The court decided that the father did not need to access his investment funds overseas, as he did not have any weekly shortfall after the court reduced his requirement to pay spousal maintenance payments to the mother.
The court ordered an injunction that the father be restrained from dealing with, transferring, dispersing or making any withdrawal from monies held in his name in any overseas bank account, save for the sum of EURO 20,000, which he could use at his own election.
Family law advice
At Michael Lynch Family Lawyers we can assist you if you need an injunction or need advice about restraining your former partner from depleting the asset pool. Call us on (07) 3221 4300 or fill in our online form here to arrange a fixed fee, no obligation initial consultation with an experience family lawyer.