Often partners or relatives find themselves in a situation where an asset which they have an interest in are being sought to be recovered under the Proceeds of Crime Act.
When an asset is owned within a relationship or a marriage then the asset will be partially owned by the partner. In those circumstances the partner should protect that asset. It is essential that legal representation independent of the defendant is obtained and that this is done at an early stage.
Since the 1st June 2015 the Serious Crime Act 2015 amended the Proceeds of Crime Act 2012 with the insertion of Section 10 A (1). This section states that where it appears to a court making a confiscation order that there is property held by a defendant that is likely to be realised or otherwise used to satisfy the order and a person, other than the defendant may also hold an interest in the property, then the court may, if it thinks it appropriate to do so, determine the extent of the defendant’s interest in the property.
In other words, the court will consider evidence to decide what proportion of the property is owned by the defendant and what proportion is owned by any other joint owner(s). The court have to give an opportunity for third parties claiming joint ownership of property to make representations to protect their share of the property from confiscation.
We have assisted
- Ex partners who are residing in the property with the children after a divorce whereby the defendant’s name is still on the deeds
- Parents who have a lifelong tenancy agreement to reside in a property which has been conveyed to a son
- Partners who have an interest in the property whilst remaining with the defendant
It is essential to obtain evidence and serve statements to assist in protecting a third persons right to the assets. When making a S.10 A determination the court can, in accordance with S.18 make an order requiring a third party to provide information.
It is clear that getting a S.10A declaration will assist in the court in determining the issue. This is a complex area of law and requires the assistance of an expert in this field to protect your assets. If you feel that you need assistance regarding the proceeds on crime please do not hesitate to contact our specialist team on 01616 966 229.