Injunctions in Property Matters
An injunction is an order that a court can make which prevents a party to the marriage doing something. Injunctions the court can make include:
- an injunction for the personal protection of a party to the marriage;
- an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
- an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
- an injunction for the protection of the marital relationship;
- an injunction in relation to the property of a party to the marriage; or
- an injunction relating to the use or occupancy of the matrimonial home.
These orders are most often sought in cases where there is a fear that one party is attempting to dispose of assets or to move the assets of the relationship to the ownership of a third party or out of Australia. The court has very wide powers but those powers are very carefully and strictly applied.
There are two criteria that must be established in order for the court to make an injunction to restrain a party to proceedings in the Family Law Courts from dealing with his or her own property:
- There must exist an arguable claim to an order altering property interests or at least a serious question to be determined under s 79 of the Family Law Act 1975, and
- There must be a danger that the party's claim to a just and equitable property settlement may be defeated or prejudiced unless the injunction is granted.
There is significant case law to the effect that in exercising its discretion whether to restrain a party's dealings with their assets, the court should not restrain a party from ordinary business dealings unless it can be shown that there is a fear that they will dispose of funds, or that there is some other good reason to grant the injunction.
It is important that the court impose the minimum restrictions that are necessary to protect the claim under the Family Law Act 1975 for a property settlement.
Often a claim for an injunction is defeated because the scope of the injunction sought is too wide or the evidence that is needed to satisfy a court that the injunction is necessary has not been provided or does not exist. Applications for injunctions should not be lightly made and court documents need to be carefully drafted.