Dividing your assets
One of the most challenging aspects of reaching a financial settlement in a divorce is dividing up possessions that have been acquired during the marriage. Often these include items which have high sentimental, emotional or monetary value, and it can be difficult to decide who should keep what. Claire Tollefson explains the issues.
Once a decision has been reached on how personal effects are to be divided, it can be immensely frustrating if one party is slow to collect their share or, worse, seeks to cause maximum inconvenience and distress by delaying collecting their possessions. This is often an attempt to continue to exert control after the breakdown of a relationship.
If the items in question are small – such as jewellery or ornaments – this may not cause too much inconvenience as they can be put away, but it’s more often large and bulky items – such as tools or car parts – that cause the problem.
You might think that if your ex-spouse has left possessions with you and didn’t collect them that they would eventually belong to you to dispose of as you saw fit. Unfortunately, unless they have been truly abandoned, that is not the case.
In circumstances like this, a party can find themselves in the unenviable position of being what is called an ‘involuntary bailee’, which means they have to look after their ex’s possessions. There is a great deal of risk associated with this position, as an ‘involuntary bailee’ must not deliberately or recklessly damage or destroy the goods, and must do what is right and reasonable.
If they try to return the goods via a third party, they must ensure that person has authority to receive the goods from their ex-partner.
A case concerning this hit the headlines recently. It involved a wife who was awarded the matrimonial home in the divorce settlement but also ended up as the ‘involuntary bailee’ for a lot of machinery left behind by her ex-husband, who owned a plant machinery hire company.
The wife repeatedly asked him to come and collect the machinery, but he was uncooperative so following the dissolution of the marriage she had the machinery taken away as scrap – whereupon the husband decided to sue her.
His argument was that his ex-wife did not have the authority to get rid of his belongings, stating that the value of these machine parts was £170,000.
Luckily, prior to disposing of the goods, the wife had had them valued as worthless by an auctioneer, and had kept all correspondence in relation to the issue. She was successful in defending the claim against her and as a result her husband was ordered to pay her legal costs, which totalled £108,000 by the end of the final hearing.
But there is a salutary point to this – whilst the wife was successful in defending the claim against her, it is unlikely that the husband will have the means to be able to pay her costs as ordered. As a result she will have to pay the costs herself which, considering the goods were worthless, is an expensive lesson.
However, these costs may well have been avoided had the appropriate notice been served on the husband at the outset, before she disposed of his property – which is why it is so important to seek legal advice as early as possible.
If you are dealing with a similar issue, you can defend yourself against a claim by serving an appropriate notice, which may well avoid the need to attend court.
The team at Cripps Pemberton Greenish is highly experienced in dealing with all aspects of financial remedy proceedings, including how personal possessions are to be divided and the enforcement of such orders. If you would like to discuss this further, please contact Claire Tollefson at email@example.com or on 01892 506 191.
First appeared in the January 2017 edition of Kent Life.