Are garnishee orders adequate?
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Are garnishee orders adequate?

Garnishee orders, or, as they are more commonly known in Maltese, mandat ta’ sekwestru, are a means to secure and protect one’s property, especially money from being lost, squandered and so on.

Let’s say A loaned some money to B and B hasn’t paid back the money to A and the stipulated time within which B should have paid A has already lapsed. A gets to know that B does not want to pay A back (the reasons why are irrelevant). What should A do? A should ask the court to issue a garnishee order against B to secure the amount owed by B to A. Thus, the amount of money that A loaned B would be “frozen” in his bank accounts. However, this is not as easy as it seems.

First of all B has to have the amount that he owes A. Let’s say he doesn’t have all the money. In that case the entire bank account would be “frozen” and if any money is deposited in that bank account it will automatically be “frozen” alongside the rest of the money in the bank account.

Obviously, if B has more money than the amount owed to A then only the amount owed would be frozen. This takes place in order to protect the money owed to A from “disappearing”. The “frozen” bank account would remain so until B decides to honour his end of the bargain or until a court decision deems otherwise.

Is that fair? Why should A suffer because B does not want to honour his obligation? Without such protection anyone could be at the mercy of others who might not honour their side of the bargain and, therefore, garnishee orders are mostly and justly needed.

However, like anything else, they can be abused in many different situations such as during separation proceedings. One might ask in what way? Isn’t this done simply to protect? Not always, sometimes this is used as a sort of “payback” or simply “to spite” the other person.

Take a couple, D and E, and D wants, for her good reasons, to make E’s life a little bit harder and she asks for a garnishee order to be issued against him. Obviously, no one would be happy to find out that his/her bank accounts are frozen, thus effectively causing havoc to his/her finances because s/he would not be able to withdraw money and if s/he does deposit anything in his/her bank account these would be caught up by the garnishee order.

Obviously, if this is done purely and simply to cause some sort of “payback” or just to spite the other spouse, the garnishee order would have been frivolous and vexatious, that is, simply to irritate the other party and there are legal remedies for such.

However, not all situations are like that, and many times, especially during separation, there are many instances where a garnishee order is called for and many a time it is that garnishee order that saves the other party’s part of the community of acquests.

Let’s say separation proceedings are going on and F decides for his own reasons to withdraw all the money in the joint account and puts that money in a Trust, then effectively that money “disappears”.

Obviously, F’s wife, G, would get the short end of the stick as she would end up without a substantial part of her part of the community of acquests. So how can G prevent such a thing taking place? By placing a garnishee order on the bank accounts to secure her share of the community of acquests before F does anything of that sort. That is a risk G has to take because F might not have even planned to clean up the bank account. On the other hand, what if he were planning to do it?

That is a safeguard G has to take if she has good reason to suspect that F might in fact be planning to do exactly that.

By asking for a garnishee order to be issued, G would not only be protecting her share of the community of acquests but she would also be protecting her children because who knows what F will do with the money once it “disappears” and cannot be traced.

The community of acquests, that is the entire family fortune with the exception of anything paraphernal, is one of the biggest bones of contention in separation proceedings and is very much in danger of being malevolently made to “disappear” to the detriment of the other party.

That is when the usefulness of the garnishee order kicks in. Of course, not everything can be caught in a garnishee order.

For example, pensions and salaries (up to a specific amount, or the entire salary if it is proven that that salary is needed for the family’s survival) cannot be caught by a garnishee order.

annmarie.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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