Injunctions for spouses and civil partners to prevent sale or disposal

Courts can make different types of injunctions or a search order to prevent sale of the home by a sole owner in serious cases.

This content applies to England & Wales

Matrimonial Causes Act – using section 37

Under section 37 of the Matrimonial Causes Act 1973, the court has the power to grant an injunction to prevent a sale or disposal of property. These injunctions can be applied for only during divorce, dissolution of civil partnership, judicial separation or nullity proceedings when there is also an application for a financial settlement and/or a property adjustment order.

The injunction can stop the sole owner or civil partner from disposing of or transferring any property if their intention is to defeat the spouse or civil partner's claim for finance or property belonging to the other. The court can also make whatever order it thinks fit to protect the other partner's claim.[1]

An injunction can also be sought where there is evidence that the spouse is about to:

  • dispose of their property

  • transfer it out of the country

  • deal with it in any other way.

In effect, the injunction 'freezes' property. 'Property' can include buildings, personal property such as jewellery and even property that has not yet been received, such as an expected redundancy payment.

Inherent jurisdiction of the High Court and county court jurisdiction to protect property

If a spouse or civil partner who doesn't own the property has an interest in it, eg a beneficial interest, and is worried that their spouse or civil partner may abscond with money or goods even though there is no specific evidence of this, it may be possible to prevent this happening. The High Court has inherent jurisdiction from common law that allows it to make an order for the detention, custody or preservation of any property that is the subject of a disputed claim.[2]

The county court has statutory powers to make injunctions, including freezing injunctions and search orders.[3] These powers apply only to interests in property, not to rights of occupation.

Freezing injunctions

A freezing injunction (previously known as a Mareva injunction) is an extremely powerful measure that allows all assets to be frozen. In appropriate cases, it can be made worldwide or limited to specific countries, thus preventing the disposal of assets anywhere in the world that could be the subject of legal proceedings.[4] It is rarely used in matrimonial situations, as the powers under section 37 of the Matrimonial Causes Act 1973 are usually adequate for most circumstances.

Orders can be made in the county court or the High Court, and application must be made ex parte to a judge in chambers (not a district judge).

Search orders

Previously called an Anton Piller order, this is another extremely serious measure that allows the court to make an order permitting the applicant's solicitor to enter the respondent's premises to inspect or copy documents and other possessions. In extreme cases, this might be used to obtain evidence about disposal of assets. The hearing is ex parte before a judge in chambers (not a district judge).

Last updated: 23 February 2021

Footnotes

  • [1]

    s.37(2)(a) Matrimonial Causes Act 1973.

  • [2]

    s.37 Supreme Courts Act 1981.

  • [3]

    County Court Remedies Regulations 1991 SI 1991/1222 and County Court Remedies Regulations 1995 SI 1995/206.

  • [4]

    s.37 Supreme Courts Act 1981.