In hostile property settlements, one partner may seek to dispose of property or other assets to prevent them from being included in the asset pool for distribution. There are legal avenues you can take to protect your property for the duration of legal proceedings and to prevent your former partner from disposing of assets prior to the property settlement.
The most common way to do this is through an injunction. An injunction is a court order that requires a party to perform a particular action, or refrain from performing a particular action. In this instance, you would be asking the court to restrain your former partner from disposing of property prior to the final settlement. Failure to comply with an injunction can result in civil or criminal penalties, including a prison sentence. You can apply for an injunction regarding property matters under section 114 of the Family Law Act. The Courts will ordinarily consider two key factors when determining the outcome of an injunction application.
First, the applicant will often be required to make a legally binding promise (known as an undertaking) to the court. This means the applicant agrees to take responsibility for any damages or losses that may arise as a result of the injunction’s enforcement, if it is later decided that the injunction was unfair and should not have been granted.
Second, the court will consider whether the injunction is necessary to protect the assets on the balance of convenience. This means that the inconvenience sustained by one party cannot be outweighed by the convenience granted to the other party.
Should you require any legal advice or assistance in your family law matter, please do not hesitate to contact Ters Legal.
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