When marriages end, the emotional turmoil often spills over into the legal process. While some couples manage an amicable separation, agreeing terms through their solicitors and settling matters with a simple minute of agreement, others face a bumpier journey. 

At the difficult end of the scale, divorce proceedings can involve bitter disputes over finances, assets and childcare arrangements, with one party refusing to engage constructively with the process.

This is where arrestment orders come into play. They are a legal mechanism designed to protect assets when there's a genuine risk they might disappear.

Understanding arrestment orders in Scottish divorce law

An arrestment order (known as a freezing order in England and Wales) is a form of legal diligence used in Scottish family law. It's a court order that effectively ‘freezes’ funds in a bank account or wages to prevent them from being moved, spent or hidden before a financial settlement can be enforced.

These orders sit at the more extreme end of divorce litigation. They're not needed in straightforward cases where both parties co-operate and provide full financial disclosure. Instead, they become necessary when one spouse refuses to engage with the process, withholds information about their finances, or shows clear signs of attempting to dissipate or conceal assets.

When might an arrestment order be necessary?

Arrestment orders typically come into play when a spouse demonstrates any of the following behaviours:

Deliberate non-cooperation 

Some individuals remain in denial about the end of their marriage or feel so aggrieved that they refuse to provide basic financial information. They may ignore requests for bank statements, details of investments, or information about their income, hoping the problem will simply go away or believing their stonewalling gives them control over the situation.

Asset concealment

There may be evidence or reasonable suspicion that money is being transferred to third parties (perhaps family members or friends) to hold at a distance from the court's reach. In extreme cases, funds might be moved offshore or invested in assets that are harder to trace.

Vindictive behaviour 

Sometimes the refusal to comply isn't about protecting assets but about causing maximum difficulty for an ex-spouse. These individuals may have demonstrated selfish or aggressive behaviour throughout the relationship, and this pattern continues into the divorce proceedings.

Risk of dissipation

Even without malicious intent, there might be concerns that a spouse will spend significant sums before a settlement is finalised, perhaps on luxury purchases, gambling, or by gifting money away.

How the arrestment process works

Arrestment orders don't appear out of nowhere. Courts recognise that freezing someone's access to their money is a serious step, so the process follows specific procedures.

Typically, the spouse seeking the arrestment must demonstrate to the court that there's a genuine risk of assets being moved or dissipated. This might involve showing evidence of unusual financial activity, large transfers, or a pattern of non-compliance with court orders.

Crucially, the arrestment process comes into play after the divorce decree has been granted. Once the court has ordered a financial settlement - perhaps requiring one spouse to pay the other a capital sum of £50,000 as their share of matrimonial assets - an arrestment can be used to secure those funds.

If the money sits in the liable spouse's bank account and there's a risk they might move or spend it before making the court-ordered payment, their account can be arrested. This prevents them from accessing the funds, while ensuring the debt will be satisfied.

Protections within the arrestment system

Scottish law recognises that while arrestment orders serve an important purpose, they shouldn't leave someone destitute. The Debtors (Scotland) Act 1987 provides safeguards to ensure that arrested accounts cannot be completely emptied.

A minimum sum must remain protected, ensuring the person whose account has been arrested can still meet their essential personal needs. The exact protected amount varies depending on the type of account and the individual's circumstances, but the principle remains constant: arrestment is about securing assets for a legitimate debt, not about causing undue hardship.

These protections strike a balance between enforcing court orders and maintaining basic fairness. After all, even in the most acrimonious divorce, the goal is a fair division of assets, not retribution.

The reality of using arrestment orders

In practice, arrestment orders represent a failure of cooperation. They're needed when someone has been given multiple opportunities to comply with court requests and procedures but has consistently refused. Before reaching this stage, there will typically have been warnings, court hearings, and increasingly stern directions from the judge.

For solicitors handling divorce cases, the hope is always that parties can reach an agreement through negotiation, with each spouse feeling they've secured a fair outcome. Every additional layer of legal intervention - including arrestment orders - adds cost, delay and stress to an already difficult situation.

However, when one party simply won't engage, these enforcement mechanisms become essential. They ensure that court orders have teeth and that a refusal to cooperate doesn't allow someone to benefit from their own obstruction.

Seeking legal advice

If you're concerned that your spouse might hide assets during divorce proceedings, or if you've been notified that arrestment action may be taken against your accounts, it's essential to seek specialist family law advice. 

An experienced solicitor can guide you through the process, explain your rights and obligations, and help achieve the fairest possible outcome in what is inevitably a challenging time.