A Guide to Injunctions

As Family Law Solicitors we’re often asked questions about injunctions. We’ve answered some of the most common queries below.

What is an injunction?

An injunction is an order which can be made by a court insisting that a person or company carry out a certain act, such as handing over assets such as the family car, or, more commonly that they must not carry out a certain act, for example, preventing your spouse from selling off land at an undervalue.

Why would I need an injunction in a divorce?

Sadly, it is not uncommon during divorce proceedings to find normally law-abiding citizens suddenly behaving in a way that is designed to deceive the court and their former spouse.  This usually involves trying to hide assets or temporarily move property out of their name and into the name of a close friend or relative, so that when it comes to disclosing their assets to the courts the total value appears depleted, resulting in the spouse receiving a smaller amount.

If you suspect your former spouse is trying to sell off assets at an under value, or is transferring assets to a friend or relative, then you should seek early legal advice regarding an injunction.

You may also need an injunction in family proceedings if your former spouse refuses to agree to the sale of the matrimonial home, or if you have been the victim of domestic abuse and need protection from your former spouse.

Are there different types of injunctions?

There are many different types of injunctions, and the most commonly used in family disputes include:

Freezing order: A freezing order prevents property being disposed of prior to the conclusion of your divorce (sometimes known as a ‘Mareva’ injunction). It can be used to stop the depletion of other assets, such as gambling or giving away money in a bank account.  Sometimes an order can be made against a relevant company, for example if your former spouse holds most of their assets in a business.  A freezing order can be used overseas as well as in the UK.

Property injunction: A property injunction is used where one spouse refuses to agree to the matrimonial home, or other land or property, being sold. The courts have the power to force the sale of the property and can step in and sign the contracts and transfer deeds needed to give effect to the property sale.   A search order permits the applicant to search premises for recovery of evidence. Although used rarely in family proceedings, they have been permitted to retain documents necessary for a fair hearing.

Occupation order: An occupation order can stipulate who can live in the family home, who can enter the property, and who is responsible for paying the mortgage and other household bills. These orders are typically used in situations involving domestic violence, and the court must be satisfied that you will be at risk of significant harm if an order is to be granted.

Non-molestation order: A non-molestation order is also used on behalf of victims of domestic violence. This stipulates that the person named in the order cannot harass, pester or molest you.  The breach of such an order will have criminal ramifications for the perpetrator.

How do I get an injunction?

You will need to apply to the appropriate court to seek an injunction, and your solicitor will do this by filing a summons with a supporting affidavit.

It is crucial that the right evidence is produced to the court immediately.  Your grounding affidavit, which is a sworn document, must detail why you believe an injunction is necessary and what evidence you have to support it.  Any documents, or other evidence such as text messages, photographs or advertisements should be provided to the court.

By their very nature, injunctions are normally dealt with on an emergency basis and without notice being given to your former spouse (sometimes referred to as an ‘ex-parte’ application).  This means that the court initially only hears evidence from you.  If satisfied that an injunction is needed, the court will then make an order on an interim basis and set a date to allow your former spouse to make their own representations and defend themselves in court.

Can I get an injunction against me dismissed?

Yes, it may be possible to get an injunction against you discharged or for its terms to be varied.

It may well be a surprise to find out that an injunction has been granted against you, and you should speak to our specialist solicitors straight away.

The injunction will have a response date stated, which is when the court will next look at your case. This provides an opportunity for you to attend court and put your side of the story.  However, the injunction will remain in effect until such times as the court discharges it.

For the injunction to be discharged, you will need to provide supportive evidence for your defence which could include the following:

·         to contradict what your former spouse has said in their grounding affidavit;

·         to show that there is no risk of the assets being dissipated;

·         that you will suffer an unjust loss if the order is continued; or

·         that your former spouse has not disclosed all the relevant facts to the court.

How can I defend myself against an injunction?

An injunction can be defended on many fronts, and some common routes include:

·         Proving that you will suffer loss, and accurately documenting this for the court is vital.

·         Showing that your former spouse has not made a full disclosure, when he or she also has an obligation to be open and honest with the court.

·         Demonstrating that information in your former spouse’s affidavit is incorrect and cannot be relied upon in court.

·         Where your former spouse (or their solicitor) has not followed the correct legal process in obtaining and serving the injunction.

·         When your former spouse has delayed in applying for an injunction.

Will an injunction show up on a background check?

Injunctions are not judgments and will not show up like a county court judgment (CCJ) on a credit file.  However, for a pre-employment check, a freezing order in place may cause a delay if a credit check is required.

If a non-molestation order or occupation order is made, then the Police will have a record of it.  They may disclose it if they feel it is relevant to a DBS enhanced search, which is usually required for roles working or volunteering with vulnerable people.

How long does an injunction last?

This depends on the type of injunction granted.

For most injunctions, like freezing orders, they are typically made on an interim emergency basis for a week or two.  The case will then be listed for review, when the injunction may be extended for a longer period of time.  The injunction will not be extended longer than is necessary to give effect to the fair settlement of assets between the couple.  This is normally the conclusion of the divorce proceedings.

For injunctions related to domestic violence, such as non-molestation or occupation orders, they are usually granted for a set period of time, such as for six months or a year.  This is aimed at giving a breathing space following separation, in the hope that the order would no longer be needed.  If, after the expiry of an order, a further incident of abuse occurs, then a further order can be applied for.

Our family department here at Franklins has a wealth of experience in supporting clients in all matters relating to family law. Should you require any assistance in this regard please do not hesitate to contact us on 01908 660 966 (Milton Keynes) or 01604 828 282 for a confidential conversation on how we can help.