The Case Of Tobias V Tobias [2017] - Freezing Injunctions, Without Notice Orders And Applications To The Out-Of-Hours Judge

On 29 June 2017, a Judgment was given in the case of Tobias v Tobias ([2017] EWFC 46) which gave guidance in relation to freezing injunctions, without notice orders and applications made to the out-of-hours Judge - all of which are explained further below.

The background to the case is that there was a property owned in the wife's sole name which the parties previously resided in as the former matrimonial home. At the time of the Judgment the wife was still living in that property but the husband was living in a care home.

The husband had a Home Rights Notice registered upon the property. By way of explanation, a Home Rights Notice can be entered against the property title by a Husband, Wife or Civil Partner in respect of a property that is or was the family home. A notice can only be registered against 1 property at any one time. If the notice is registered, it puts others on notice of that person's interest (including a right of that person to occupation of the property). It serves as a protection for the non-owner spouse. Despite a Home Rights Notice being registered it does not however determine the beneficial interests in the property.

The property in this case also had charges upon the property title - meaning that monies that had been borrowed had been registered (by way of mortgages/legal charges) against the property. The Local Authority also had a legal charge on the property in relation to unpaid council tax.

The husband in this case sought a freezing Order in relation to the property on an ex-parte basis (meaning that it was sought without prior notice to the wife). The freezing Order, if an application had have been successful, would have had the effect of preventing the wife from disposing of/dealing with the property pending the resolution of the case.

The husband also sought to make the application not only on an ex-parte basis but he also made the application to the out-of-hours High Court Judge. An application for an out-of-hours Judge to deal with a case would only be in appropriate circumstances, e.g. if there is an urgency/an emergency.

It was said however that when making the application, the husband's statement in support was defective and he also did not make a formal application. Moreover, the Court had not received a Divorce Petition in this matter at that time and therefore they were not able to deal with the application at that stage in any event.

A few weeks later, the application came in front of the Honourable...