Posts

Personal insolvency verses matrimonial law

/in /by

By Ian Defty, partner at Begbies Traynor and insolvency advisor at Legal Futures Associate  Integrated Dispute Resolution.

It is fair to say that there has, for many years, been a “difference of opinion” between the law governing personal insolvency and matrimonial law with each “side” believing that they are right and should take precedence.

The principal, sometimes conflicting, legislation is covered in the Insolvency Act 1986 and the Matrimonial Causes Act 1973. However, the differing courts can and will give wide discretion when determining whether and how a married couple’s assets are to be divided.

In accordance with the Matrimonial Causes Act 1973 there is an expectation that assets accrued during the marriage should be regarded as jointly owned between the spouses and normally be divided equally between the parties, whereas assets held by one spouse or the other before the marriage should be left to that party unless there is good reason to divide them. The matrimonial home is usually always considered as a matrimonial asset to which the sharing principle applies.

But, relationship breakdown has grave financial and legal consequences. Some people may find themselves in a position where they inherit debts from their partners or can’t pay off their debts because of poverty. Therefore, personal insolvency can be a result of separation or divorce.

Personal insolvency is a resolution strategy for people who can’t afford to pay their debts. Debt solutions are available for insolvent people and are legally binding. These give insolvents protection from their creditors and can help eliminate some or all of their debts.

In personal insolvency the overriding principle is to see that the creditors as a whole get dealt with fairly and in accordance with insolvency law which may often seem to go against matrimonial law which seeks to ensure that a spouse and maybe children are dealt with first and foremost.

In general terms, all property belonging to or vested in the bankrupt at the commencement of the bankruptcy forms part of the bankruptcy estate and will vest automatically in the trustee in bankruptcy immediately upon their appointment. On the face of it, this may appear unhelpful to the bankrupt’s spouse, especially if they are divorcing.

Divorce and bankruptcy are critical legal cases. When dealt with simultaneously, they can be complicated. Hence, seeking professional legal help is a must. Anyone planning to file a bankruptcy can get help from a bankruptcy lawyer. They can help spouses facing mortgage foreclosure, wage garnishment, and other bankruptcy-related problems navigate chapters 7 and 13 for children’s welfare.

Section 306 of the Insolvency Act 1986 sets out that the bankrupt’s estate shall vest in the trustee immediately on their appointment taking effect or, in the case of the official receiver, on his becoming trustee.

The Insolvency Act 1986 goes on to set out the relevant insolvency legislation regarding what defines a bankrupt’s affairs (S.283) and the restrictions on dispositions of property (S.284).

Section 283 defines a bankrupt’s estate as;-

  • all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and
  • any property which by virtue of any of the following provisions of this Part is comprised in that estate or is treated as falling with the preceding paragraph.

Section 284 sets out the restrictions on dispositions of property as follows; –

  • Where a person is made bankrupt, any disposition of property made by that person in the period to which this section applies is void except to the extent that it is or was made with the consent of the court or is or was subsequently ratified by the court.
  • Subsection (1) applies to a payment (whether in cash or otherwise) as it applies to a disposition of property and, accordingly, where any payment is void by virtue of that subsection, the person paid shall hold the sum paid for the bankrupt as part of his estate.
  • This section applies to the period beginning with the day of the making of the bankruptcy application or (as the case may be) the presentation of the bankruptcy petition] and ending with the vesting, under Chapter IV of this Part, of the bankrupt’s estate in a trustee.
  • The preceding provisions of this section do not give a remedy against any person –
  1. in respect of any property or payment which he received before the commencement of the bankruptcy in good faith, for value and without notice that the bankruptcy application had been made or (as the case may be) that the bankruptcy] petition had been presented, or
  2. in respect of any interest in property which derives from an interest in respect of which there is, by virtue of this subsection, no remedy.
  • Where after the commencement of his bankruptcy the bankrupt has incurred a debt to a banker or other person by reason of the making of a payment which is void under this section, that debt is deemed for the purposes of any of this Group of Parts to have been incurred before the commencement of the bankruptcy unless —
  1. that banker or person had notice of the bankruptcy before the debt was incurred, or
  2. it is not reasonably practicable for the amount of the payment to be recovered from the person to whom it was made.
  • A disposition of property is void under this section notwithstanding that the property is not or, as the case may be, would not be comprised in the bankrupt’s estate; but nothing in this section affects any disposition made by a person of property held by him on trust for any other person.

If bankruptcy precedes an order made under the Matrimonial Causes Act the legal and practical outcome is straightforward and the assets vest in the trustee. Difficulties arise when the order under the Matrimonial Causes Act 1973 precedes the bankruptcy. The impact of the making of a bankruptcy order on matrimonial proceedings will therefore depend on the point that the matrimonial proceedings have reached.

Where a person has been declared bankrupt (or a bankruptcy petition has been presented against the debtor) prior to the making of a financial remedy order under matrimonial law, the matrimonial court is restricted in the financial remedy order it can make. Generally speaking, the matrimonial court cannot make a property adjustment order as the bankrupt’s estate will have vested in the trustee under the Insolvency Act 1986.

In accordance with S.336 of the Insolvency Act 1986, where an application is made by the trustee to realise the matrimonial home after a year since the vesting of the bankrupt’s estate in the trustee, there is a presumption that the interests of creditors outweigh all other considerations that will include that of the spouse (and other family members such as children).

The transfer of an interest in the matrimonial home pursuant to a consent order made under s.24 of the Matrimonial Causes Act 1973 constitutes a “disposition” for these purposes and is therefore void (Re Flint [1993]). This was reinforced in 1994 with Woodley v Woodley (No. 2) [1993] 2 FLR 477 by where the Court of Appeal held that the presentation of a bankruptcy petition is not a disposition for the purposes of s.37 of the Matrimonial Causes Act 1973 and cannot be challenged as an attempt to avoid an order for matrimonial relief. Therefore, the correct way to attempt to challenge an allegation of a spouse using bankruptcy as a fraudulent device to defeat his/her divorcing spouse’s matrimonial claim ‘s claim is to seek for the bankruptcy order to be annulled under s 282(1)(a) by the court exercising insolvency jurisdiction. It is not open to a judge of the Family Court to use the Civil Procedure Rules to transfer insolvency proceedings to the Family Court be dealt with as part of the financial remedy proceedings, per Arif v Zar [2012] EWCA Civ 986.

A matrimonial property transfer order made after the presentation of the bankruptcy petition is a void disposition by the debtor for the purposes of s.284 of the Insolvency Act. In 2010 a matrimonial settlement by ex-spouses which had not been finalised by the time a creditor issued a bankruptcy petition against the husband was struck out by the court as it constituted a disposition of the spouse’s property, per Warwick v Yarwood [2010] EWHC 2272.

Greg Williams, a barrister at Coram Chambers, London, who specialises in matrimonial finance cases, said: “During the last decade, ultralow interest rates combined with a generally high rate of employment has meant that our day-to-day divorce cases rarely feature bankruptcy issues. That may be about to change: the impact of Covid 19 and Brexit is likely to be felt this year. If personal or household debts becomes unsustainable, practitioners and their clients need to be alert to potential insolvency issues. Assets which would otherwise form part of the matrimonial pot can be lost entirely to a successful bankruptcy petition. Or we may see an increase in applications from trustees in bankruptcy to sell family homes to the chagrin of the remaining spouse and children.”

Indeed, bankruptcy law and family law are directly related to each other, with several changes in the past few years. In addition, the courts are getting more stringent in scrutinizing bankruptcy cases raised by parties to determine if they’re taking advantage of family proceedings, like a plotted divorce, in an attempt to write off their debts.

For more information or to discuss an insolvency matter within matrimonial law please contact IDR on admin@integrated-dr.com or 0207 8465 600.

The inability to pay debts test before the Maltese Courts

/in /by

In its recent decision Xuereb v Weber Construction Limited Et (decided 18 March 2021) the Civil Court (Commercial Section) weighed in once more on the appropriate tests to be applied when assessing a company’s inability to pay its debts under Maltese corporate insolvency law. One of Weber Construction Limited’s (“Weber”) shareholders filed an application in court requesting the company’s dissolution and consequential winding up on the grounds inter alia that it was unable to continue to pay its debts.

Article 214(2)(a)(ii) of the Companies Act, 1995 (the “Act”) grants the court discretion to order the dissolution and winding up of a company where the company is “unable to pay its debts”. For the purpose of this provision, a company is deemed to be unable to pay its debts if (i) a debt due by the company has remained unsatisfied (in whole or in part) after 24 weeks from the enforcement of an executive act specified under Article 273 of the Code of Organisation and Civil Procedure; or (ii) it is proved to the court’s satisfaction that the company is unable to pay its debts, account being taken also of the company’s contingent and prospective liabilities.

It is only once one of the above tests is proved to the court’s satisfaction that a Maltese court may consider exercising its discretion whether to order a company’s dissolution and consequential winding up. Therefore, a clear understanding and correct application of the various insolvency tests contemplated under the Act is central to the court’s application of its discretion in this regard.

In approaching this issue, Maltese courts do, as a matter of settled practice, refer to the corresponding provisions of the UK Insolvency Act, 1986, on account of the conceptual similarity between the two legal systems where matters of corporate insolvency are concerned.Indeed, the court in Xuereb v Weber did concede that although the Maltese concept of insolvency adopted a more restrictive application than the test applied under English law, there were “overlaps” between the two tests.

Under English law, there are 2 principal tests of insolvency – the “cash flow” test (where a company is deemed to be insolvent on account of its inability to pay its debts as they fall due) and the “balance sheet” test (where a company is deemed to be insolvent in the event that its liabilities exceed its assets).

Retaining this distinction is also possible under Maltese insolvency law however, any reference to a Maltese version of the cash flow test or balance sheet test only works to the extent that the application of specific statutory requirements under the Act are akin to a “cash flow” and/or “balance sheet”-type insolvency scenario.

Our courts (including in Xuereb v Weber) have been prepared to regard the Article 214(5)(a) of the Act (requiring for a debt to remain unsatisfied, whether in whole or in part, following 24 weeks from the enforcement of an executive act) as resembling the cash-flow test under English law, affirming nonetheless that the English law requirement that a company be “unable to pay its debts as they fall due” is a far wider test than the requirements under the Maltese statutory provision.

Similarly, Article 214(5)(b) which speaks of a company’s inability to pay its debts, account being taken also of the company’s contingent and prospective liabilities, can be treated, strictly for comparative purposes, as the Maltese law conceptual counterpart to the English law “balance-sheet” insolvency test. Here again, the Maltese courts have repeatedly pointed out a significant difference between the two tests, notwithstanding the accepted conceptual similarity. Section 123(2) of the Insolvency Act 1986 prescribes similar yet not identical wording to Article 214(5)(b) of the Act and states that: “A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company’s assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.”

Under the Maltese “version” of the balance-sheet test, a court’s determination would be limited to assessing a company’s ability (or lack thereof) to service its debts, account being taken also of its contingent and prospective liabilities. On the other hand, a court in England carrying out a similar determination would inquire about the value of the company’s assets compared to the amount of its liabilities (account taken also of contingent and prospective liabilities).

Statutory divergences notwithstanding, a Maltese court will invariably draw upon the body of case-law developed by the English courts in determining a potential exercise of the balance-sheet test to reach a conclusion of inability of pay debts under the Act. In Xuereb v Weber, the court looked to English jurisprudence on the treatment of “contingent and prospective liabilities” for the purpose of determining potential balance-sheet insolvency. In so doing, a Maltese court will embrace and make part of its own determination those important principles developed before the English courts on this subject, for instance, that a court is able to take into account contingent and prospective liabilities, but not contingent and prospective assets [Byblos Bank SAL v Al-Khudhairy (1986) 2 BCC99 549 (CA)].

Based on the evidence submitted, and following an analysis of the applicable jurisprudence, the court in Xuereb v Weber did express its satisfaction that the company was shown to be in a position where it was not able to pay its debts, account having been taken of its contingent and prospective liabilities.

Having ascertained a case of “balance-sheet” insolvency, the court ordered that Weber was to be dissolved, and appointed the Official Receiver as liquidator to the company to commence the winding up process.

Richard Camilleri

Insolvency and Bankruptcy Laws – Extension of timelines

/in /by
In view of the pandemic COVID-19 and the changing business environment due to COVID-19, the Insolvency and Bankruptcy Board of India (“IBBI”) has issued certain notifications to address various concerns of stakeholders in connection to Insolvency and Bankruptcy Code, 2016 (“Code”) and other regulations framed therewith.
The gist of some of the latest notifications issued by the IBBI are set out below:
1. The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“CIRP Regulations”), provides that the corporate insolvency resolution process is a time bound process and it is required to be concluded by the insolvency professional in a prescribed period of 330 days including litigation period. The IBBI has amended the CIRP Regulations by inserting a new special provision which states that the period of lockdown imposed by the Central Government due to outbreak of pandemic COVID-19 will not be counted for the purposes of the time-line for any activity that could not be completed due to such lockdown in relation to a corporate insolvency resolution process.
2. The Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (“Liquidation Regulations”), the liquidation process is mandatorily required to be completed by the liquidator in a prescribed period of 365 days. Due to spread of COVID-19 and declaration of lockdown by the Central Government, the IBBI has amended the Liquidation Regulations by inserting new regulation which states that the period of lockdown imposed by the Central Government due to outbreak of pandemic COVID-19 will not be counted for the purposes of the time-line for any task that could not be completed due to such lockdown in relation to any liquidation process.
3. In addition to above, IBBI has also issued notification amending the Model Bye-Laws and Governing Board of Insolvency Professional Agencies (Amendment) Regulations, 2020 whereby it has given certain relaxations on time lines and its rules for authorisation of assignment by Insolvency Professional Agencies to their professional members.
The above relaxations in timelines are evidence that the regulators are mindful of the difficulties and delay in compliances owing to COVID-19. The Government of India and the regulators are constantly making efforts to ensure that corporates and professionals have fair liberties to comply with the timelines and regulations.
Disclaimer
This news flash has been written for the general interest of our clients and professional colleagues and is subject to change. This news flash is not to be construed as any form of solicitation. It is not intended to be exhaustive or a substitute for legal advice. We cannot assume legal liability for any errors or omissions. Specific advice must be sought before taking any action pursuant to this news flash.

 

For further clarification and details on the above, you may write to Mr. Vaishakh Kapadia (Partner) at vkapadia@almtlegal.com, Mr. Ankit Parekh (Senior Associate) at aparekh@almtlegal.com and Mr. Vinit Shah (Associate) at vshah@almtlegal.com.

Business Insolvency – New EU Rules

/in /by

The EU is giving reputable bankrupt entrepreneurs a second chance, and making it easier for viable enterprises in financial difficulties to access preventive restructuring frameworks at an early stage to prevent insolvency.

The Council formally adopted today the directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures. This decision marks the end of the legislative procedure.

The overall objective of the directive is to reduce the most significant barriers to the free flow of capital stemming from differences in member states’ restructuring and insolvency frameworks, and to enhance the rescue culture in the EU based on the principle of second chance. The new rules also aim to reduce the amount of non-performing loans (NPLs) on banks’ balance sheets and to prevent the accumulation of such NPLs in the future. In doing so, the proposal aims to strike an appropriate balance between the interests of the debtors and the creditors.

The key elements of the new rules include:

  • Early warning and access to information to help debtors detect circumstances that could give rise to a likelihood of insolvency and signal to them the need to act quickly.
  • Preventive restructuring frameworks: debtors will have access to a preventive restructuring framework that enables them to restructure, with a view to preventing insolvency and ensuring their viability, thereby protecting jobs and business activity. Those frameworks may be available also at the request of creditors and employees’ representatives.
  • Facilitating negotiations on preventive restructuring plans with the appointment, in certain cases, of a practitioner in the field of restructuring to help in drafting the plan.
  • Restructuring plans: the new rules foresee a number of elements that must be part of a plan, including a description of the economic situation, the affected parties and their classes, the terms of the plans, etc.
  • Stay of individual enforcement actions: debtors may benefit from a stay of individual enforcement actions to support the negotiations of a restructuring plan in a preventive restructuring framework. The initial duration of a stay of individual enforcement actions shall be limited to a maximum period of no more than four months.
  • Discharge of debt: over-indebted entrepreneurs will have access to at least one procedure that can lead to a full discharge of their debt after a maximum period of 3 years, under the conditions set out in the directive.

Next steps

This formal vote marks the end of the legislative process. The directive will now be formally signed and then published in the official journal. Member states will have two years (from the publication in the OJ) to implement the new provisions. However, in duly justified cases, they can ask the Commission for an additional year for implementation.

Background

The proposal was presented by the Commission on 22 November 2016. The new rules complement the 2015 Insolvency Regulation which focuses on resolving the conflicts of jurisdiction and laws in cross-border insolvency proceedings, and ensures the recognition of insolvency-related judgments across the EU.

The European Parliament formally voted on the directive on 28 March 2019.