What is a Freezing Order / Injunction in UK Divorce?

What is a freezing order or freezing injunction?

A freezing order, also known as a freezing injunction or Mareva injunction, is a court order that prevents a person from dealing with, disposing of, or moving their assets while financial remedy proceedings are ongoing. A freezing order is a temporary injunction. It is normally used in urgent situations where waiting for the normal financial remedy process would risk the assets being moved, spent, hidden, or transferred. The order tells the person subject to it that they must not deal with their assets up to a specified value without the court’s permission.

A freezing order can cover assets in the UK only, or it can be worldwide. A worldwide freezing order does not actually freeze assets held in other countries. Instead, it limits the behaviour of the person subject to it on a global basis. If that person disobeys the order, they face serious consequences in England and Wales, regardless of where the assets are held.

The types of assets a freezing order can cover include:

Bank and savings accounts
Property and land
Shares and investments
Business interests
Vehicles, jewellery, and other valuable personal property, and
Funds held by third parties on behalf of the person

It is important to understand the difference between a freezing order and an order under section 37 of the Matrimonial Causes Act 1973. Section 37 orders allow the court to set aside or prevent a specific disposition of property where it is made with the intention of defeating a financial claim. A freezing order under section 37 of the Senior Courts Act 1981 and the court’s inherent jurisdiction is broader in scope. It can freeze a person’s assets generally up to a specified value, rather than targeting only a particular transaction or disposal of assets.

When should you apply for a freezing order in divorce proceedings?

Although you do not have to have formally started financial remedy proceedings before applying for a freezing order, you must show the court that you genuinely intend to pursue a financial claim. If you cannot demonstrate this, the court is unlikely to grant the order.

A freezing order application is evidence-heavy. You need real, concrete evidence that the other person is at risk of moving, spending, hiding, or giving away assets so that they will not be available when the court comes to divide the matrimonial finances. Suspicion alone is not enough.

Examples of behaviour that courts have accepted as evidence of dissipation risk include:

Transferring property or significant sums of money to third parties, particularly just after divorce proceedings have begun
Selling assets at a significant undervalue
Moving money offshore or into accounts in other countries
Closing or emptying joint bank accounts
Failing to give full financial disclosure and showing signs of hiding assets
Making unexplained large withdrawals from bank accounts, and
Threats made by the other party about what they will do with the assets

How to apply for a freezing order in divorce

A freezing order can be applied for with notice, meaning the other party is informed in advance, or without notice, meaning the application is made without telling the other party beforehand. The choice depends on the urgency of the situation and whether giving notice would defeat the purpose of the application. Applications without notice are the exception rather than the rule and require strong justification.

The application process involves the following steps:

Prepare the application
Without notice hearing
Grant of the order and service
Return hearing

Prepare the application

The key documents usually required are an application notice (typically Form D11 in the family court), affidavit evidence setting out the evidence of risk of dissipation, and a draft freezing order for the court to consider. The affidavit evidence must clearly explain why you believe there is an immediate risk that assets will be moved or disposed of. The evidence must be specific and credible.

Without-notice hearing

In urgent cases, the court may hear the application without notifying the other party. This is only justified where there is powerful evidence that giving any notice would cause the other party to take steps to defeat the purpose of the order, or where there is genuinely no time to give notice before the assets are at risk. The court will only allow this in exceptional cases.

Grant of the order and service

If the court grants the order, it will usually require the applicant to give a cross-undertaking in damages. This is a formal promise that, if the order is later found to have been wrongly granted, the applicant will compensate the other party for any loss caused by the order. The order must then be served on the other party.

The return hearing

A return hearing is usually listed shortly after the without-notice order is made. At the return hearing, the other party has the opportunity to challenge the order. The court will then decide whether the freezing order should continue, be varied, or be discharged. If the order was made with notice from the outset, there is no return hearing in the same way, but the other party can still apply to discharge or vary the order.

FAQs about Freezing Order / Injunction in UK Divorce

How long does a freezing order last?

A freezing order is temporary. It remains in place until the court orders otherwise. In most cases, it will continue until the financial remedy proceedings are concluded and a final order is made. However, it can be varied or discharged at any time if circumstances change or if the court finds that the grounds for granting it no longer apply.

Can I challenge a freezing order?

Yes, if a freezing order has been made against you, you can apply to the court to have it varied or discharged. You may be able to argue that the order was wrongly granted because the applicant did not have sufficient evidence of dissipation risk, that there was material non-disclosure by the applicant at the without-notice hearing, that circumstances have changed since the order was made, or that the terms of the order are too wide and are preventing you from meeting ordinary living expenses or legal costs.
Most freezing orders include a provision allowing the person subject to the order to spend a reasonable amount on living expenses and legal costs. If you believe the order is causing you undue hardship, you can apply to the court to change it.

Are there any alternatives to a freezing order?

A freezing order is not always necessary. Alternatives worth considering include:
• Section 37 of the Matrimonial Causes Act 1973: this allows the court to set aside a specific disposition of property that was made with the intention of defeating a financial claim, or to prevent a proposed disposition from taking place. It is less wide-ranging than a full freezing injunction, but may be sufficient in many cases
• Voluntary undertaking: the other party may agree to give a formal undertaking to the court not to deal with specific assets while proceedings continue. This avoids the need for a contested injunction application, and
• Agreed interim order: the parties may be able to agree on an interim financial order that freezes or ringfences specific assets by consent, without needing a contested hearing

References:

Section 37 of the Matrimonial Causes Act 1973

GOV.UK: Form D11