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Family Law and Practice LPC LG04 D2
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LEGAL PRACTICE COURSEFamily LG 04: Suggested answer to post-session exercises
Exercise 1
Heike should be advised that she can issue an application under s 37(2) MCA 1973 for an order
restraining Georg from dealing with his assets until further order.
There has to be an existing application for financial remedies. This is clearly satisfied because
Form A was issued in March. Heike can therefore make the application at any time. However,
time is of the essence in order to prevent further dissipation of assets.
Heike has to satisfy the court that Georg is about to make a disposition or transfer assets out of
the jurisdiction with the intention of defeating Heike’s claim. The standard of proof is on a
balance of probabilities and does not have to be Georg’s sole intention.
There is a presumption under s 37(5) that a dealing that a proposed dealing will be done with
the intention to defeat the applicant’s claim unless Georg can prove that this is not the case.
In this case, Heike has clear evidence that Georg is about to transfer assets out of the
jurisdiction in the form of the letter from his employer.
It is therefore likely that the court will make the freezing order. The order can be made in
respect of assets in England and Wales or assets abroad. Heike will need to ensure that the
share options are mentioned specifically in the order. She will also need to ensure that the
order is served both on Georg’s employer and the German bank (in the event that Georg has
transferred any funds there already).
The application can be made ex parte in order not to tip Georg off.
Heike should note that post the decision of Imerman v Tchenguiz [2011], Georg may try to
argue that Heike opening his post constitutes a breach of confidentiality, meaning that he has a
claim in tort against her. However, as it was accidental, it is unlikely that he would succeed with
this argument.
Exercise 2
Joan can ask the court to use its discretion under s 37(2) (b) to set aside the transfers to
Richard. In order for the court to do so, it has to be satisfied that both transactions were
“reviewable dispositions”. This is defined in s 37(4) MCA 1973. In this case, both transfers
would satisfy that definitions because they were not made for valuable consideration to a bona
fide purchaser. Richard clearly acted in bad faith by inducing Barry to carry out the transfer.
Although it will not be difficult to do so in this case, Joan has to show that the transfer was made
with the intention to defeat Joan’s claims. Even if Richard had not persuaded Barry to make the
transfer with the aim of preserving his assets, the fact that it took place less than three years
before the petition was issued means that the court will imply that it was done with the requisite
intention under s 37(5) MCA 1973.
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