Section 37 orders

A few peeps may be interested in this,


Ex parte hearings and freezing orders
The specific duties on an application who seeks relief without notice to the other party are (or should be) well known, and were set out by Munby J in Re S (Ex Parte Orders) [2001] 1 FLR 308 including the often-overlooked obligation on an applicant to put all relevant matters before the court – including those which might be adverse to the applicant, and to disclose to the respondent all material put before the court (including a note of the hearing). More recently in FZ v SZ and Another [2010] EWHC 1630, Mostyn J commented at [32]

"It is an absolutely elementary tenet of English law that save in an emergency a court should hear both sides before giving a ruling. The only recognised exception to this rule (apart from those instances where an ex parte procedure is specifically authorised by statute) is where there is a well founded belief that the giving of notice would lead to irretrievable prejudice being caused to the applicant for relief. I have the distinct impression that a sort of lazy laissez-faire practice or syndrome has grown up which says that provided that the return date is soon, and provided that the court is satisfied that no material prejudice will be caused to the respondent, then there is no harm in making the order ex parte. In my opinion this is absolutely wrong and turns principle on its head."

It is also worth recalling that an application for a freezing order (or a restraining order under MCA s 37) should not extend beyond those assets necessary to make a party judgment-proof. The court has no business freezing a party's entire asset ­base­:

"…there was no reason why the court in matrimonial proceedings should grant a Mareva injunction covering all the assets of the other party, since the purpose of a Mareva injunction was to safeguard the plaintiff or petitioner from a situation in which the assets of the opposing party were run down with the intention of making that party judgment-proof, and in matrimonial proceedings no petitioner was ever likely to get the whole of the respondent's fortune" (Ghoth v Ghoth [1992] 2 FLR 300, headnote)

Hi Dukey,

In s37 (1)

or frustrating or impeding the enforcement of any order which might be or has been made at his instance under any of those provisions.

Could you possibly translate specifically what this may mean ?

Thanks so much !


poppy

Hi Dukey, have read thanks.
Will ancillary coming up, please would you be able to summarise the article in leymans terms.

Thankyou

Poppy i have no legal qualifications so i can`t tell you exactly what it means but ill have a stab.

Firstly it needs to be in context, the provisions or rules are often dependent on other sections of the act, its not black and white because it covers a multitude of scenarios.

Think of it like this, your mum (the law) says go to the shop and buy some tea bags, you have £1 your mum (the law) says if there is any change you can buy some sweets, so your sweets are dependent on how much the tea bags cost.This is what is meant when you read this that and the other is dependent on the provision of of s37(3) or whatever


What s(1) is saying is that you are not allowed impede court in any way including any future potential order.

Example - court ask a person to provide documents when investigating a potential order under section 37 - person says the dog ate them the bank lost them i have a pooley cough so i cant, this is frustrating the court process.

If the person continues to slow the process court can make the order by discretion.

Hello Survive sorry i missed your post.

This is part of an article written by a barrister with the aim of outlining the arguments relating to freezing orders.

The other guys mentioned are queens counsel who are barristers qualified to interpret law some also are high court judges.

A freezing order is when you ask court to freeze assets of your ex because you think thy will move hide or spend the money in the hope you will receive a smaller settlement than you are entitled too.The reason you would receive less money is because court cannot award you assets or money that no longer exist.

The court can make a number of orders to prevent an ex from moving hiding or wasting assets, they have the power to do this under section 37 of the marital causes act 1973, the marital causes act forms the core part of the law used by court when people divorce in particular it is used when no financial agreement can be made and an application is made to court to help resolve the outstanding issues (ancillary relief).

Ex parte is latin meaning without notice - what it means is the court can consider an application with a section 37 order without warning the respondent.

So the argument, if you go to court and ask your ex`s assets be frozen should the court warn the ex first.

Should court freeze all assets and accounts (maveva order) or just assets in dispute or potentially in dispute.

Have courts taken the view that all assets be frozen without considering if this could prejudice the matter later, in other words would hasty action without the big picture being considered before the order is made make the final outcome appealable making the whole exercise a waste of time and money.

It should be noted that these orders are quite rare and tend to be more relevant in big money cases, they are used though and a handful of wiki`s have had them both ordered and imposed.

At the end of the day a judge must decide on the balance of probability, if the judge is faced with a case where there is a strong chance one partie will dissipate assets hide them move them whatever the judge must decide a, if the order should be made b, should it be ex parte.

The argument against the mavera order is that why should court freeze all assets when there is zero chance that the applicant will be awarded all of the assets.

Personally i think the orders exists to protect peeps from dishonesty so they are a good idea - the arguments for and against are best left to those who wear the wigs and robes.

We usually use Section 37 if there is a 'flight-risk' where a party may remove assets from the court's jurisdiction.

I prefer the old term 'avoidance of disposition order' when seeking to prevent assets from being disposed of. It somehow sounds more important and, although in obvious legal-speak, is still more de­script­ive than 'Section 37'.

Charles

I presume the Order would only freeze known assets? Assets not known about can still be disposed of?