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Freezing Assets During Divorce: Your Legal Shield Against Malicious Financial Moves

In contentious divorces or separations, partners may try to hide, deplete, or dispose of shared assets to prevent their ex from receiving a fair share. This post explains the power of a Mareva Injunction (or freezing order) in Family Law, detailing the evidence required to freeze bank accounts and property, and advising on crucial, less adversarial alternatives.
The Risk: Why Assets Disappear During Separation

Divorce and separation are highly emotional periods. Under stress, a person may act out of malice or fear, attempting to liquidate or hide marital assets—cash, investments, or property—to frustrate a future property settlement.

To protect your financial entitlements from such actions, Australian Family Law allows for Injunctions, which are court orders that either forbid or require a specific action. The most frequent financial injunction is the Mareva Injunction, or Freezing Order.

Understanding Mareva Injunctions (Freezing Orders)
A freezing order is a serious step, not granted lightly by the Court. It effectively protects your assets by preventing your ex-partner from removing or disposing of them until a final Property Settlement is reached.

When is a Freezing Order Granted?
To apply for an injunction to freeze bank accounts or other assets, you must provide the Court with strong evidence proving:

An Argüable Case: You have a strong case for a future financial judgment (e.g., a property settlement entitlement).

Evidential Risk: There is a real and substantial risk that your ex-partner will dispose of or remove assets, which would prevent any future court judgment from being satisfied.

Reasonable Scope: The injunction must only cover the value of assets required to satisfy the likely judgment, causing "minimal disturbance" to the other party.

Contempt of Court: If a freezing order is granted, and your ex-partner violates it by removing funds or disposing of assets, they face serious consequences, including fines or imprisonment.

What is an Ex Parte Application?
In urgent cases where notifying your partner would prompt them to immediately dispose of assets, the Court can hear your application Ex Parte (from one party only). If granted, the order is issued without your ex-partner's knowledge until it is served, preventing them from accessing the frozen funds.

Alternatives to Adversarial Injunctions
While necessary in cases of extreme distrust, a freezing order is a highly adversarial move that can cause long-term resentment, especially if children are involved. Falzon Legal always strives for more peaceful and constructive solutions first:

Consent Orders: If you can reach an agreement (often through mediation) regarding the division of cash and assets, the agreement can be formalized into a Consent Order. This is legally enforceable under the Federal Circuit and Family Court of Australia (FCFCOA).

Binding Financial Agreement (BFA): This is a contract that details how assets will be divided upon separation or divorce. It can be made before, during, or after the relationship and removes the need for court intervention.

If you suspect your ex-partner is depleting shared assets, you must seek legal guidance immediately. Whether through a firm injunction or a peaceful agreement, protecting your assets is critical to securing your post-separation future.

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If your business is in severe financial distress and options like restructuring are exhausted, company liquidation offers a formal, legal, and structured closure. This post outlines the three main types of liquidation, identifies the crucial warning signs of insolvency, and details how prompt, strategic action protects directors from personal liability and brings an end to mounting pressure.

What Liquidation Means for Your Business
Liquidation is the formal process of closing a company. An appointed Liquidator takes control, sells the company's assets, and distributes the funds to creditors according to legal priority. While often associated with failure, liquidation can be a strategic choice for directors seeking legal finality.

There are three main types, but the most common for struggling businesses is:

> Creditors' Voluntary Liquidation (CVL): This occurs when the directors themselves determine the company is insolvent and proactively appoint a Liquidator. This is a respectable and crucial proactive step.

> Members' Voluntary Liquidation (MVL). Sometimes solvent businesses, i.e. those not in debt, are simply no longer needed. Perhaps the company was a vehicle for a project that’s now finished, the directors are retiring, or the returns provided by the operation were disappointing. So, it needs to be closed.

> Court-Ordered Liquidation (Compulsory Liquidation). This most typically happens when a creditor has issued a Statutory Demand to the company, and it has failed to pay the debt, negotiate a settlement, or have the Stat Demand set aside.

When to Consider Creditors' Voluntary Liquidation (CVL)
Directors often wait too long, escalating both the debt and the personal risk. You should consider a CVL if:

> Debt is Unmanageable: You are chronically unable to pay bills, tax debts (ATO), or salaries promptly.

> Legal Threats are Imminent: Creditors are threatening legal action or have issued a Statutory Demand (which gives you only 21 days to respond).

> Personal Funds are Used: You are injecting personal money just to keep the business afloat.

> Options are Exhausted: Refinancing, restructuring, and voluntary administration have failed or are no longer viable.

Liquidation as a Strategic Shield for Directors
While emotionally difficult, a timely and properly managed CVL is a powerful move that protects you as a director:

Insolvent Trading Protection: A properly timed liquidation can prevent allegations of insolvent trading, which could lead to significant personal claims against directors.

> Mitigating DPN Risks: Prompt action can reduce the risk of receiving a Director Penalty Notice (DPN) from the ATO, which makes you personally liable for specific company tax debts (PAYG, GST, SGC).

> Ending Creditor Pressure: Once the Liquidator takes over, all creditor correspondence and demands cease, providing immediate relief from overwhelming stress.

> Dignified Closure: A CVL provides an orderly, professional, and legally safe way to close the business, avoiding a chaotic collapse or enforced court-ordered liquidation.

Tax Consequences: Director Liability Remains a Risk
While liquidation ends the company’s existence, it does not automatically eliminate all tax liabilities. The most important consequence for directors is the risk of personal liability:

> DPN Enforcement: The ATO uses the DPN system to pursue directors personally for certain company tax debts. Getting expert legal advice before or immediately after receiving a DPN is crucial, as the type of DPN issued dictates your options.

The Voluntary Liquidation Process: Once a Liquidator is appointed, directors step back, provide the necessary records, and the Liquidator begins selling assets, investigating the company’s affairs, and addressing debts in the order of legal priority.

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