We are often in the situation where we are seizing assets that belong to a couple, married or co-habiting, and defendants state that the items belong to their spouse and therefore cannot be seized. In many cases, they are wrong!
Can assets owned by the defendant's husband, wife or partner be seized when executing a writ? What happens with jointly owned goods - can they be seized?
Is a spouse liable?
The defendant may believe the goods are exempt from seizure because their husband, wife or partner is not liable for the defendant’s debts.
It is correct that the spouse will not be liable for debts incurred by their other half, unless named on judgment/writ, in which case the High Court Enforcement Officer (HCEO) is entitled to seize assets belonging to either party, as well as those jointly owned.
If the enforcement officer believes the goods belong to the defendant, he is able to seize them on paper, in other words, they are seized but not removed (and will remain in situ under a Walking Possession Agreement).
The spouse is then given five days to provide written proof of ownership. If the spouse does not dispute the seizure at the time and the goods are subsequently removed and/or sold, then they are able to claim ownership by starting an interpleader claim.
However, if goods are jointly owned, as many items will be, the enforcement officer can seize, remove and sell them if the debt remains unpaid.
In this case, the HCEO can apply to the court under RSC Order 17 for interpleader relief. This means he is asking the court to decide how to divide the proceeds of the sale between the defendant and their co-owner spouse. The percentage of the proceeds determined as belonging to the spouse will go to them and the remainder will be used to satisfy the debt.
A simple claim that the goods belong to the other half is not enough. Written proof of ownership (and the absence of joint ownership with the defendant) is essential to prevent removal and this should include purchase receipts and bank statements where applicable.