Confiscation Proceedings (POCA) and the Family Home

Confiscation Proceedings (POCA) and the Family Home

John Veale of Kangs Solicitors has considerable experience of conducting complex Confiscation / POCA cases. Here he provides some guidance on the issues that can arise involving the family home in Confiscation Proceedings.

Confiscation Proceedings will invariably involve the family’s biggest asset, the home and this is what makes confiscation possibly the most upsetting, divisive and stressful aspects of being found guilty or pleading guilty to certain criminal offences.

Just because you may have owned the property and acquired it legitimately many years before being involved in the Court system, this does not mean that the family home is not vulnerable to being confiscated.

Whether obtained legitimately or not it is still your asset and the Prosecution will do everything in their power to wrestle it from you.

Is my Partner entitled to half of the House?

The Court will usually accept that if your partner’s name is on the title deeds of the property as an owner, your partner will be entitled to a 50% share of the equity.

If not you are faced with one of the most complex areas of law for which you will need the best possible advice from a firm of confiscation solicitors such as Kangs Solicitors who have years of experience in dealing with such cases.

Does it make a difference if we are Married?

You may think that if you are married your partner will be entitled to a share of the home, but even marriage does not guarantee this.

At Kangs Solicitors we have experience of conducting numerous cases where the Prosecution have taken the view that a matrimonial interest only crystallizes upon divorce.

The financial investigator will therefore look for any evidence of separation or divorce and you may find yourselves in a position where you feel forced to divorce from your partner.

Even then your partner’s share of the property, if not actually agreed, may be determined by the principles set out by the Family Court and involve a whole checklist to determine how the home should be divided.

Constructive Trusts and Confiscation Proceedings

If divorce is not contemplated or you are not married to your partner and your partner is not named as an owner on the deeds, an interest may have to be determined by establishing a constructive trust.

You would have to be able to show that your partner had contributed to the mortgage or the household to the extent that it enabled you to meet the mortgage payments.

There would also have to be evidence of common intention when the home was purchased that you and your partner intended that the property was for you both.

This again is a very complex area of law – in fact it is a positive minefield and the need for early and expert advice is imperative.

Kangs Solicitors have recently been successful in establishing a constructive trust in confiscation proceedings brought by the National Crime Agency. This resulted in preservation of half the equitable interest in the family home for the partner.

Third Party Rights in Confiscation Cases

Recent changes to the confiscation regime mean that a partner or third party can now ask the Crown Court at the confiscation hearing to determine the extent of any interest in a property.

Whereas this might offer some advantages, any decision made by the Crown Court is likely to bind other Courts, such as the Family Court if there is a subsequent divorce.

As a result very careful legal and tactical consideration needs to be given before a Crown Court is to be asked to make such a determination. This is an area in which we have successfully assisted many clients and it requires the specialist knowledge possessed by our team of confiscation lawyers.

How do I deal with the Property once the Confiscation Order has been made?

Once an interest is established, how the property is dealt with also requires a degree of expertise to safeguard against future claw back by the State.

It may be that your partner buys you out of the property and the money you receive is used in satisfaction of the Confiscation Order. If this is the case, it must be demonstrated that you are not going to retain any interest in the property or acquire one in the future.

It will be essential to draw up documentation that confirms this.

Prosecution can attempt a second bite of the cherry – how do I protect myself?

In a case recently dealt with successfully by John Veale of Kangs Solicitors the Prosecution sought to obtain as part of the Confiscation Order a share of the increase in equity in the family home even though the partner had bought our client’s interest out previously as part of bankruptcy proceedings.

How we can help to make a difference to your Confiscation Case

We appreciate that Confiscation Proceedings are often extremely complex matters that require patience, attention to detail as well as considerable analytical skills.

We have conducted hundreds of such cases and below is a sample of recent cases conducted by our highly experienced team.

Such cases are best dealt with by experts and our specialist confiscation department will be happy to consider your case and offer you guidance though what can seem like a maze of overly-complicated legislation.

How you can get in touch with us?

If you require advice and assistance on any area of Confiscation Proceedings or Proceeds of Crime Act (POCA), please do not hesitate to reach out to our team using the contact information below:

Tel:       0333 370 4333

Email: info@kangssolicitors.co.uk

We provide an initial no obligation consultation from our offices in London, Birmingham, and Manchester. Alternatively, we provide initial consultations by telephone or video.

Hamraj Kang

Hamraj Kang
Senior Partner

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John Veale

John Veale

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Tim Thompson

Tim Thompson

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