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Difference between revisions of "Protecting Property and Debt in Family Law Matters"
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Protecting Property and Debt in Family Law Matters (view source)
Revision as of 04:40, 19 April 2013
, 04:40, 19 April 2013→Financial restraining orders
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<blockquote><tt>The Respondent shall be and is hereby restrained from disposing or encumbering, or attempting to dispose of or encumber, the family property and other property at issue without the express written agreement of the Claimant or the further order of this Honourable Court.</tt></blockquote> | <blockquote><tt>The Respondent shall be and is hereby restrained from disposing or encumbering, or attempting to dispose of or encumber, the family property and other property at issue without the express written agreement of the Claimant or the further order of this Honourable Court.</tt></blockquote> | ||
In other words, unless the | In other words, unless the respondent comes to an agreement with the claimant or the court makes another order, under a restraining order like this the respondent is not allowed to sell any real property or personal property, or use that property as collateral for a loan or a mortgage. An order on terms like these is usually all that will be necessary for most couples in most circumstances and will cover real and personal property in British Columbia and personal property outside of British Columbia. | ||
Remember that the Provincial Court does not have the power to make orders affecting property, including restraining orders about property. | Remember that the Provincial Court does not have the power to make orders affecting property, including restraining orders about property. | ||
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*The order ''must'' be granted on a party's application, unless the other party can show that there are enough assets that the applicant's claim to the property won't be frustrated if he or she happens to sell some of the assets. | *The order ''must'' be granted on a party's application, unless the other party can show that there are enough assets that the applicant's claim to the property won't be frustrated if he or she happens to sell some of the assets. | ||
*The order can be made without the other party being given notice of the application. | *The order can be made without the other party being given notice of the application. | ||
*The order includes not just family property but all "property at issue" | *The order includes not just family property but all "property at issue," which might include excluded property. | ||
This is an important order and should probably be applied for whenever a claim is being made for the division of property. Again, this is a matter of simply being prudent. You may have no cause to believe that your spouse would do something that would jeopardize your interests, but it almost always pays to be cautious. | This is an important order and should probably be applied for whenever a claim is being made for the division of property. Again, this is a matter of simply being prudent. You may have no cause to believe that your spouse would do something that would jeopardize your interests, but it almost always pays to be cautious. | ||
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#you have a reasonable claim against assets owned by your spouse, | #you have a reasonable claim against assets owned by your spouse, | ||
#your spouse has disposed or encumbered his or her assets or is likely do so, and | #your spouse has disposed of or encumbered his or her assets or is likely do so, and | ||
#the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted. | #the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted. | ||
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#you have a reasonable claim against assets owned by your spouse, | #you have a reasonable claim against assets owned by your spouse, | ||
#your spouse has disposed or encumbered his or her assets or is likely do so, and | #your spouse has disposed of or encumbered his or her assets or is likely do so, and | ||
#the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted. | #the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted. | ||
