In family law cases, conflicts frequently emerge concerning the classification of Trust assets as either matrimonial, eligible for division between the parties, or non-matrimonial, and excluded from the division.
Disputes can arise regarding the true intentions behind establishing a specific Trust, whether it was created for legitimate purposes or to avoid the other spouse's financial claims.
If your spouse is aware of the sale/transfer, and decides that you disposed of the assets with the intention of defeating their matrimonial claims, they could may make an s.37 application to the Court to either freeze or reverse the sale/transfer or alternatively freeze the net proceeds of sale if the same can located and accounted for.
What is Section 37 Avoidance of Dispositions Order?
An s.37 Avoidance of Dispositions Order is an order setting aside or stopping a transaction by a spouse that was or is being made to defeat his/her spouse's application for a financial remedy.
Section 37(5) of the Act stipulates that the intention to defeat the other spouse's matrimonial claims is presumed if the disposition of the asset took place less than three years before the application. The court will look at a variety of factors in respect of the sale/transfer in order to determine whether this presumption is rebutted.
If the presumption is not rebutted the transaction will be set aside unless:
" The asset was exchanged for an appropriate sum; and
" The third party who acquired the property/asset acted in good faith and was unaware that the sellers' goal was to defeat their spouse's matrimonial claims.
It is crucial to note that there are serious costs implications for the losing party in such applications. Therefore, it is important you seek advice from a solicitor before proceeding with such applications or if you find yourself on the opposite end of such an application.
In summary, if you have sold/transferred assets in the 24 months prior to the initiation of divorce proceedings, your spouse may, if they believe you had disposed of the assets with the intention of defeating their matrimonial claim, submit a s.37 application to the Court. If this claim is successful, it can either freeze or reverse the sale/transfer or alternatively freeze the net proceeds of sale if the same can located and accounted for.
At Duncan Lewis Solicitors, our family department comprises of lawyers specialised in handling cases involving high net worth individuals. We can provide expert legal advice to help you determine whether the assets in a specific Trust are likely to be considered as part of the marital estate, eligible for division between the parties, or if they are more likely to be considered non-matrimonial and excluded from the division. Our team of high net worth divorce solicitors are dedicated to assisting you with all aspects related to divorce or separation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.