Image of possessions being separated during a divorce

Involuntary Bailees: What you need to know

One of the most challenging aspects of reaching a financial settlement on divorce can be separating the personal possessions that have accumulated throughout the marriage. Often there are items which have sentimental or emotional value, or which have a monetary value, and it can be difficult to decide who should keep what. This can lead to further conflict and frustration.

A standard clause in any financial remedy order is that chattels are to be divided by agreement, and that if agreement is not reached, the items shall remain with the person in whose possession they currently are. It can often be time consuming and expensive to work out who should get what possessions.

It can therefore be a source of immense frustration when, having reached an agreement on who is to keep what, one party seeks to cause maximum inconvenience and distress to the other by delaying and avoiding collecting items which it has been agreed they are to keep. The delay can prolong the emotional turmoil of the divorce and prevent both parties from being able to move on with their lives.

In circumstances like this, a party can find themselves in the unenviable position of an “involuntary bailee”, where without their consent, they are in possession of goods belonging to another. The owner of the goods retains their rights to the goods, but the bailee owes certain duties. There is a great deal of risk associated with this position, as an involuntary bailee must not deliberately or recklessly damage or destroy the goods, and must do what is “right and reasonable”. The bailee cannot assume that the goods have been abandoned by the owner and therefore cannot treat the items as their own. They also would find it difficult to claim storage costs from the owner. If the bailee tries to return the items via a third party they must ensure that the third party has the owner’s authority to receive the goods.

In a 2016 case the wife was awarded the matrimonial home in the divorce settlement, however the husband operated a plant machine hire company and there was a great deal of machinery left by him at the property which he failed to remove. The wife tired of this and after 10 years had the machinery taken away as scrap, whereupon the husband decided to sue her saying that she should not have disposed of his belongings, and placing the value of the goods disposed of at £170,000. Luckily, prior to disposing of the goods, the wife had had them valued by an auctioneer at £0, and had kept all solicitor correspondence in relation to the issue. She was successful in defending the claim against her as a result, and it was ordered that the husband was to pay her costs, which totalled £108,000 by the end of the final hearing.

Fortunately, there is legal recourse available to those who are dealing with this issue. The Torts (Interference with Goods) Act 1977 provides a complete defence to any claim from an ex partner that their belongings have either not been looked after appropriately or disposed of. It is necessary to serve a notice in the form set out in the legislation, stating where the goods are, that they are ready for delivery, and arrangements for collection should be made within a reasonable time. A schedule of the goods should be attached. Once that time frame has elapsed it is reasonable to assume that the goods have been abandoned, and it is possible for you to dispose of the items as you wish. If you were to sell the items you would need to account to the owner for any proceeds of sale, less sale costs. Serving of such a notice may well avoid the need to attend court. This can be an important tool for those who are looking to move on from a divorce and want to ensure that the reminders of their partner are removed from their environment in a timely and efficient manner. A family lawyer will be able to assist you with drafting the appropriate notice and ensuring that it is served on your ex partner correctly. You should ensure that you retain evidence of all steps that you take so you can defend a future claim.

In conclusion, whilst you and your ex partner may have worked extremely hard in negotiating an agreement on all issues, there is still the potential for issues like this to arise. A clearly worded financial remedy order at the outset can assist in reducing the occurrence of involuntary bailee issues, but unfortunately this risk cannot be eliminated altogether. It will all come down to your ex partner and whether they choose to collect their belongings or not.

Claire Tollefson, Managing Associate in the Family Team at Cripps.

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