A party facing a claim for maintenance or a settlement of property may be tempted to put assets beyond reach. Section 93 of the Matrimonial Causes Act (Chapter 282) deals with that.
Sections 93(1) and (2)
In this section, “disposition” includes a sale and a gift.
In proceedings under this Act, the Court may set aside or restrain the making of an instrument or disposition — by or on behalf of, or by direction or in the interests of, a party — if it is made or proposed to be made to defeat an existing or anticipated order in the proceedings for:
- costs;
- damages;
- maintenance; or
- the making or variation of a settlement.
“Set aside or restrain” — the section works both after the event and in advance. A transaction already completed may be unwound; one that is proposed may be stopped.
“By or on behalf of, or by direction or in the interests of, a party” — the party need not be the person who executed the instrument. A transfer by a company the party controls, or by a relative acting at their direction, is caught.
“Existing or anticipated” — the order need not have been made yet. A disposition made when proceedings are looming is within the section.
“Includes a sale and a gift” — selling at an undervalue, or at full value into a form that is harder to trace, is as much a disposition as a gift.
| Order | Where it comes from |
|---|---|
| Costs | Section 97, and security for costs under section 68(2) |
| Damages | Section 32 — damages against an adulterer |
| Maintenance | Section 73, including interim maintenance |
| Making or variation of a settlement | Section 75 |
Section 93(3) — reaching the property
The Court may order that money or property dealt with by such an instrument or disposition:
- may be taken in execution; or
- charged with the payment of such sums for costs, damages or maintenance as the Court directs; or
- that the proceeds of a sale shall be paid into court to abide its order.
Subsection (3) recognises that setting a transaction aside is not always the right answer. Where the property has passed to a third party who cannot fairly be disturbed, the court may instead charge it, or capture the proceeds.
Payment into court is the usual protective order while the substantive claim is decided — the asset is converted to money, and the money is held by the court rather than by either party.
Sections 93(4) and (5) — protecting outsiders
In making an order under this section, the Court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
A party, or a person acting in collusion with a party, may be ordered to pay the costs of any other party, or of a bona fide purchaser or other person interested, of and incidental to the instrument or disposition and the setting aside or restraining of it.
Subsection (5) reaches beyond the parties to the marriage. A person acting in collusion with a party — a relative who accepted a sham transfer, a business associate who took title to hold for the spouse — may be ordered to pay costs.
Subsection (4) is the counterweight. A genuine purchaser who paid value without notice is not to be stripped of what they bought; the court must consider their position and make orders protecting them. In practice that will often mean using the subsection (3) charge or proceeds route rather than setting the sale aside.
Section 96 — the injunction power
The Court may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), where it appears to the Court to be just or convenient, and either unconditionally or on such terms and conditions as the Court thinks just.
Section 93 requires proof that the disposition was made to defeat an order. That is a finding of purpose, and it takes evidence.
Section 96 requires only that an injunction appear just or convenient. So the usual course where assets are at risk is an urgent interlocutory injunction under section 96 restraining dealings, with the section 93 application to follow.
The words “in aid of the enforcement of a decree” confirm that section 96 is available after judgment as well as before — alongside the enforcement provisions in Part X.
Where the asset is registered land, an injunction should be supported by steps to prevent registration of a dealing. And where a party simply refuses to execute a document the Court has ordered, section 77 allows the Court to appoint someone to sign in their place.
Both sections operate only in proceedings under this Act. Because section 4 excludes customary marriages, a party to a customary marriage must look to the general injunction jurisdiction of the National Court instead.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 4, 32, 68, 73, 75, 77, 86–90, 93, 96, 97
- Constitution — s 155(4)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.