The spouse not in control of the assets and liabilities may be able to file an Application in a Case pursuant to section 114 of the Act seeking an injunction restraining the other party from dealing with property of the marriage or de facto relationship. The Court may make an order or injunction under section 114 binding a third party pursuant to section 90AF of the Act.
The Court is likely to make an order that prevents a person from doing an act that may reduce the size of the asset pool, reduce the value of an asset or otherwise make obtaining a just equitable division of the asset pool more difficult at a later date i.e. at Final Hearing.
If a transaction has already taken place that fits within one of those categories, the Court may set aside a transaction of a party to a marriage, or by a third party on behalf of that party to a marriage, which is made or proposed to be made to defeat an existing or anticipated claim for a division of property.
Litigants to family law proceedings on occasion dispose of property, or an interest in a company, to a family member. In those circumstances, an order can be sought providing for that transaction to be undone and the property or interest in the company to revert to the person that disposed of it to ensure that it is taken into account in the property proceedings.
It is important to note that the person seeking the injunction will often be required to give an undertaking to the Court to be responsible for any damages that may arise as a consequence of that injunction being enforced.
Furthermore, the Court will give consideration to whether that injunction is necessary to ensure that the party receives their entitlements in relation to the asset pool. By way of example if, a motor vehicle worth $20,000 is disposed of and the balance of the asset pool is $1,000,000, and a person is entitled to 50% of that asset pool, then setting aside the transaction disposing of the car, or an injunction seeking that the car not be disposed of, is not necessary to ensure that the other party receives what they are entitled to by way of property adjustment.
If you have found yourself in a situation whereby you do not have access to the assets of your marriage, please contact us urgently so that we may provide you with further advice about the options outlined above.
Written by Alexandra Finemore, Associate
