Property Preservation in Family Law
Introduction
Property disputes in the realm of Family Law often necessitate protective measures to ensure equitable outcomes.
Preservation Orders under the Family Law Act
Section 12 of the Family Law Act empowers the court to issue Preservation Orders, which serve to restrict the depletion of a spouse's property and ensure its safekeeping. The purpose of these orders, as confirmed in Bronfman v. Bronfman, is to guarantee sufficient assets for an equalization payment once the amount is determined. The court, however, must balance three factors when considering such an order: the relative strength of the plaintiff's case, the balance of convenience, and the potential for irreparable harm.
The Discretionary Nature of Preservation Orders
The court's power to issue a Preservation Order is discretionary. Significantly, there does not need to be any cogent evidence for the court to mistrust the spouse or suspect them of malfeasance. In complex cases, a judge may issue a Preservation Order strictly out of caution, showing the flexibility and adaptability of this mechanism in serving the interests of justice.
The Certificate of Pending Litigation (CPL)
The Certificate of Pending Litigation (CPL) is another mechanism that a spouse can utilize to preserve property.
Once issued, a CPL serves notice to the public that the interests of certain property are currently subject to a court dispute. The test for obtaining a CPL - the spouse must merely show that they have a reasonable claim to an interest in land on the balance of probabilities. While a CPL does not legally prevent the disposal of property, it often deters buyers, adding an extra layer of protection to the spouse's interest in the property.
Conclusion
In conclusion, Preservation Orders and Certificates of Pending Litigation are two vital mechanisms in Family Law that assist in protecting a spouse's property interests during disputes. They serve to ensure that justice is not undermined by premature property depletion and that sufficient assets remain for equitable distribution. Understanding these mechanisms is crucial for spouses embroiled in property disputes, as they provide avenues for safeguarding their property interests, allowing for a fairer resolution of the dispute.
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