Can Cryptocurrency and Cryptoassets be Frozen?

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cryptocurrency law uk

There is an ongoing legal problem with the use of cryptocurrency and cryptoassets when it comes to building wealth and protecting funds from seizure. Lawyers and those seeking legal counsel need to be prepared to deal with new laws and precedent regarding the use, discovery, recovery, and freezing of cryptoassets as part of trial investigations.

 

Are cryptocurrencies properties?

Before any question is raised to cryptocurrencies being subject to a freezing injunction, first it must be established if cryptoassets can be considered property at all.

When compared to other traditional assets, such as fiat currency, real estate, trusts and etc., cryptocurrencies are revealed that:

  1. They are not a chose in possessions (i.e., a tangible personal property that can be possessed or transferred), since they are virtual and not tangible items. It is not possible to posses a single cryptocurrency coin, but only to be granted access to said item via a wallet key that may be stored on more traditional media such as storage drives or printed out.
  2. They are not a chose in action (i.e., assets that carry with them rights to recover money or debt, such as titles, inheritances, bank accounts and bonds) since they do not contain or provide any enforceable right to the bearer to be repaid or transformed into other forms of property.

Therefore, to enable cryptocurrency to be defined as a ‘property’ that possesses value that can be pursued in court, it may be required to create a classification for intangible property.

Fortunately however, there are case precedents that establish that cryptocurrency can be considered property by international courts. Cryptocurrency –

“meet the four criteria set out in Lord Wilberforce’s classic definition of property in National Provincial Bank v Ainsworth [1965] 1 AC 1175 as being definable, identifiable by third parties, capable in their nature of assumption by third parties, and having some degree of permanence.”

Therefore cryptoassets are subject to a freezing injunction.

The question therefore becomes, are cryptoassets at all enforceable to being frozen under an injunction?

 

Finding value in pairs of random numbers

The most famous example of cryptocurrency is Bitcoin. Essentially, a Bitcoin is a piece of cryptography – a unique sequence of lines and numbers – that is then encoded into a blockchain, a line in a distributed ledger. This ledger is stored independently in potentially millions of computers all over the world, without any one person or organization to claim ownership or identify the owner of a particular bitcoin. This anonymity and resilience against government-backed currency manipulation and unlawful seizure of property is supposed to be the main selling point of cryptocurrency.

A piece of cryptocurrency on the blockchain is composed of two codes – a public key, which is broadcast to the system, and a private key that is known to no one but the sender. This key opens the ‘wallet’ which decrypts the public key using the private key as proof of ownership facilitating transfer. The private key is a string of numbers that can be stored anywhere, from a text file, on usb device, embedded onto a physical coin, or written out on a piece of paper.

The private key enables anyone knows of it to deal with the cryptocurrency in the wallet. At no point in the transaction are personally identifying details such a name or location ever involved (in contrast to bank transfers which require account details). Once a digital token or coin is transferred, it is irreversible. The inability to force a freeze or refund nor to identify the recipient presents problems to anyone who hopes to recover from a cryptocurrency-based scam.

When considered part of a portfolio, cryptoassets do have their value and growth potential. For cryptocurrency to be viable as investment properties, the owner must retain possession of the private key for their crypto wallets.

In practice, a piece of cryptocurrency is as valuable as only what someone else may pay for it in fiat currency. Its value can vary greatly, more than stocks, which is why some prefer to use it as a vehicle for speculation as much as its traits of secrecy and security.

 

investment cryptocurrency

Standardized Freezing Orders Adapted to Handling Cryptocurrency

It is required to use a standard form of wording when writing a proprietary freezing injunction to restrict the use of specified assets. Any departure from the standard wording must be drawn to the attention of the judge. Accordingly, a freezing order ought to feature the words –

  • Until the return date or further order of the court,
  • the respondent must not remove from England and Wales
  • or in any way dispose of, deal with or diminish the value of the following assets
  • which are in England and Wales, namely:
  • [specify in detail]

 

Therefore, when dealing with cryptocurrency, there are special considerations compared to traditional assets:

  • Immediately it must be proven that the person has possession of these cryptoassets via the physical possession of the public key, whether it be in the form of emails, registration in a cryptocurrency exchange, a usb device, or any other storage medium.
  • Being that cryptocurrencies are stored in a blockchain, which simultaneously exist in many computers all over the world, there is no need to prove that the asset exists in England and Wales,
  • The respondent and others must be prevented from moving cryptoassets around, which can only be done by securing their possession of the public key and preventing this public key from being used in any other computer. Remember, anyone with the public key can manipulate the wallet containing the crypto-assets.
  • Ironically, the same fact that cryptocurrency must be taken for granted to exist in England and Wales also means that moving them means removing them from England and Wales because once any transfer is done, those digital tokens become anonymized and could be anywhere under a new private key or converted to fiat currency.
  • Cryptocurrency assets must not be referred to in terms of monetary value, since their prices in the exchange vary heavily and suddenly, but instead must be noted in specific amounts of tokens and coins.

 

Exerting Control over the Cryptocurrency Assets

The difficulties regarding the intangibility and highly complicated nature of cryptoassets would require orders that deal with disclosure and the instruction of experts. Since the identification of cryptoasset holdings rely on the possession of private keys, it is correct that the first thing to do is to obtain physical possession and analysis of devices which may contain the relevant ‘wallets’.

Should the respondent be using a wallet provided by a cryptocurrency exchange, it is possible to order a freeze on these account. A company that provides such a financial service would comply under the force of law. Obtaining the respondent’s passwords to cryptocurrency exchanges would also allow monitoring of the assets held in place.

A cryptocurrency exchange usually serves also as a means for speculation, buying and selling cryptocurrency the same way as foreign exchange speculation takes advantage of fluctuating differences in currency value. Cryptocurrency, as property, can even be included in trusts. Cryptoassets used as a legitimate investment vehicle that require identification information can more easily be frozen.

Cryptoassets held as a reserve however need more aggressive measures.

An order for the seizing, custody, and preservation of devices that may contain the private keys is sanctioned by certain sections in the Family Procedure Rules 2010. It may be more important to obtain this custody immediately than just a conventional freezing order.

 

Disclosure of Crypto-Assets

As cryptoassets are valid property, they must be disclosed under an order. This order may precede the freezing order. Disclosing the existence of crypto assets to an Expert instructed by the court may be the only way to get those devices which may contain access to the ‘wallet’ returned.

As long person subject to the investigation and freezing order does not;

“sell, transfer or otherwise deal with the cryptocurrencies whose details are stored on the USB devices [and (other devices)] returned by the Expert save with the written consent of the applicant or pursuant to a further order of the court, and the respondent must not instruct, encourage or otherwise permit any other person to do so on his behalf.”

If the respondent actively attempts to hide and transfer assets rather than disclose them, they would be subject to a criminal charge of perjury, have their assets continually be examined and again in the future for signs of malfeasance, and once discovered would possibly be subject to other criminal charges such as tax evasion, etc.

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divorce uk marriage law

Is being married now an equivalent to suffering a personal injury?

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Stop me if you’ve heard this one: A lawyer gets married to a lawyer. Once they divorce, one of them gets half the assets plus £400,000 extra for no longer being a lawyer.

More seriously: There was a recent example in case law judged by Mr Justice Philip sMoor, in which a couple met at a firm. She was an in-house lawyer by the time they were engaged, and was considered to have ‘a good chance’ of eventually becoming a partner at the law firm. The husband did not wish for her to remain at the firm when they married, and she accepted this outcome.

They first met in September 1999, when he was an associate solicitor and she was a trainee. She became an associate in March 2001, and their relationship initiated by 2002, and soon after the husband was made an equity partner. She was promoted to managing associate in 2006, and moved away from the office to work at a bank as an in-house lawyer in 2007. They married in 2008.

Since then they had been married for a decade with two children.

Justice Moor stated that while it was “unusual to find significant relationship generated disadvantage that may lead to a claim for compensation,” but this was such a case in which “the wife gave up her legal career, with the support of the husband.”

He added “He was somewhat ungallant as to the wife’s abilities, telling me that he did not think she was an exceptional candidate despite her two exceptional grades in her 2006 and 2007 appraisals. He has clearly convinced himself that her frailties mean she would never have been made a partner at the firm.”

The wife agreed that “compromises had to be made” when they got married, and she agreed to “put her career to one side for the children”. She considered herself “incredibly driven” and “it was very difficult for her to leave the firm”, not wanting to give up “her financial security or the ‘badge of honour’” she noted in the evidence that the husband “did not make her give up her career” – it was all by her own volition.

“I am satisfied that, by the time the decision was taken to leave, she had formulated her plan which involved both marriage and, hopefully, children. She viewed herself as the parent who would take primary responsibility for the children. The husband’s career took precedence,” Justice Moore said in the judgement.

Mr. Justice Moor noted that this should not be a case that opens the way for other relationship-generated disadvantage claims.

He said: “I have already made the point that, in many of these cases, the assets will be such that any loss is already covered by the applicant’s sharing claim. In other cases, the assets/income will be insufficient to justify such a claim in the first place. It follows that litigants should think long and hard before launching a claim for relationship-generated disadvantage and they should not take this judgment as any sort of “green light” to do so unless the circumstances are truly exceptional.”

 

The Concept of Redress in UK Law

The obvious answer to the question in the title is: No, of course not.

When during a marriage one partner must take a step back to put family ahead of ambition and earning power, this is usually reflected in the division of assets and maintenance. While one may find material success in their career, the less tangible support offered by the other partner in emotional and mental needs should not be discounted either. Would the breadwinner have gone so far if they did not have their family to allow them to set down their burdens and/or prevent burnout? Taking care of children and one’s home used to be a full-time activity and being a mother remains a career in itself worthy of respect.

The concept of redress is to give compensation or payment for a wrong that has been done. Not usually is marriage considered a ‘wrong’ done to somebody. Relationship-generated disadvantage is already often compensated for, and any additional claims are usually awarded only for sake of child maintenance or when the relationship has things involved that are more abusive or criminal in nature.

Where compensation does look similar comes from the nature of damages awarded in personal injuries – the claims cover not just hospital bills and suffering, but also wages lost and potential future earning potential in the case of permanent personal injuries.

Thus, in a way, the answer is also somewhat… yes? If you get married and get a divorce, it is inevitable of course that you have to sacrifice something. You’re supposed to both be putting something into the marriage as equal partners and not everything can be so easily given a monetary value.

In this particular instance, the woman gave up a particularly lucrative career, earning £100,000 a year before she left. Many eligible men now also fear marriage as something that will hack away half their net worth when they get divorced. However, being taken to the cleaners by a gold-digger is nothing new either. It is symptomatic of a relationship of un-equals.

For every high-flying international billionaire like say, Elon Musk, there’s also a similar sanity check Bill and Melinda Gates. Treating marriage as a potentially adversarial partnership will make it a self-fulfilling prophecy.

 

Relationship Disadvantage in Median Households

The case, as Justice Moor stated, should not open the floodgates to other similar claims. Most median households would not apply. This is not so much a ‘rich people exemption’ but that the potential earning power of both partners in the marriage would be close enough that it would not matter.

Only matrimonial assets can be divided as part of financial remedy proceedings. After a divorce with children, one of the spouse will be made to continue maintenance payments for their children.

It’s not only financial adversity that affects couples in divorce, but when involving children it’s not just the welfare of children that should be considered but also parental separation and adult psychological distress. The one with the children needs additional upkeep in order to raise their children, but additionally paying maintenance continues to give the other parent rights to equitably access their children and play a substantial role in their lives.

 

No Weight Given to Pre-Nuptial Agreement

Now, when one thinks of preserving one’s assets in marriage, one usually thinks of pre-nuptial agreements. Some might think that the division of assets and spousal maintenance after a divorce is biased towards the woman. They would be wrong.

It is biased against big money. Relationship-generated disadvantage can be most clearly seen with prenuptial agreements that treat marriage and time spent together as little more than a contract-based relationship.

Let’s take the example of Morgan McConnell, the great-granddaughter of the founder of Avon Products, and Anil Ipekci, whom she met when he worked as a concierge at Le Parker Meridien in New York. They first met in 2003 and began co-habiting in January of 2005. They decided to marry.

A pre-nuptial agreement was drafted by McConnel’s private lawyer and another lawyer was found in order to give Ipekci independent legal advice. It just so happened that this lawyer was the solicitor that acted for McConnel in her divorce for her first husband. He first met the lawyer on the 3rd of November 2005, and by then the marriage had already been fixed to commence on 26th of the same month of 2005.

The draft had surprising qualities, which as Mr Justice Mostyn noted:

“The husband must have been very surprised by what it contained. First and foremost, it provided that the agreement was deemed to have been made under the laws of the State of New York and that its validity and effect and construction should be determined in accordance with those laws regardless of where either party resided or was domiciled at the time of death or divorce or separation. Second, it provided that the parties wished any proceedings relating to the marriage to be determined in accordance with the laws of the State of New York and that they submitted to the exclusive jurisdiction of the courts of that State.”

Among the provisions given to Ipekci (in event of marriage lasting at least three years and with two children) was that any increase in the value of three properties in the name of the wife that were sited within Barnes, Hanwell, and New York, would be divided equally between the parties on divorce. The husband would not be entitled to claim any alimony or any other money from the wife. In the agreement the three properties were attributed with the value of $1.6 million or at present £1.24 million.

The husband was counseled that the agreement was slanted heavily in favour of the wife. Nonetheless, he signed it on 11 November 2005 and the parties were properly married 15 days later.

Now what actually happened was that the proceeds of the three properties were folded into their existing family home in Barnes, which had a net value of £1.074 million. There being no increase in value for both parties to share, under the agreement the husband would receive nothing at all.

Mr Justice Mostyn held that it would be wholly unfair to hold the husband to the agreement he signed for several reasons:

  • The contract specifically stated that the agreement would be governed by New York law. Astoundingly, the agreement was not accompanied by a certificate that it conformed with the local law it attested, and thus the agreement in New York would have “minimal weight, if any” citing a previous case in the New York Appeal Court that a document “would carry no legal force except for the minor impact of its historical voice”.
  • It would therefore be unjustifiable to attribute weight to the agreement when under the law that both parties signed it under it would not be granted any weight,
  • While it could not be said that the husband was afforded a full appreciation of the legal implications of the document, and it was not proven satisfactory that the solicitor who gave the advice was not compromised. The situation showed apparent bias.
  • The agreement didn’t serve any needs of the husband,
  • Thus Justice Mostyn attributed no weight to the pre-nuptial agreement.

Since all of the assets in the case either were or had their origin in non-matrimonial property, the claim was decided solely by reference to the principle of needs.

Mr Justice Mostyn said:

“The following are relevant considerations in determining the reasonable needs of the husband:

  1. i) This was a 12-year cohabitative relationship.
  2. ii) As a result of the way that the parties organised their married life the husband has made no provision for himself from his earnings either by way of savings or pension.iii) The standard of living, whilst not by any means a determinative factor, is relevant and was in this case reasonably high.
  3. iv) It is in the interests of the two children of the marriage that their father has a reasonable home in which they can stay with him comfortably and that they do not perceive him as being in some way the poor relation.
  4. v) The husband will not be making any contribution to the maintenance of the children or to their school fees – they will be supported entirely by the wife save in respect of those incidental expenses met by the husband during the time that the children spend with him.vi) In respect of the sum allowed for the husband’s housing it is not necessary for all of it to be provided to him outright. There was agreement at the Bar that it would be reasonable for half of the housing sum awarded to be charged back in favour of the wife (or her estate) on the death of the husband.”

He awarded the husband a lump sum of £1,333,500 of which £375,000 was subject to a charge-back.

The English court is not bound to make an order in the same terms as a prenuptial agreement. While it could make a good defense against financial claims, at certain necessary times the court may make orders different to them.

Pre-nuptial agreements can be reviewed, they are not set in stone. A rational marriage can decide for itself if people should be held to the terms of a historic agreement and avoid costly litigation.

Or in summary, if big money wants to play silly buggers with contract law the courts will have none of that mischief and works with what is most realistic.

 

Money and Property after a Marriage Ends

The court in the UK will general divide things in half, but that is merely the starting point. Matrimonial assets refer to money and properties that were gained during the course of the marriage, which may include

  • Family home
  • Other real estate
  • Pensions
  • Savings
  • Vehicles
  • Furniture & appliances
  • Stocks, bonds and mutual funds
  • Businesses

The court aims to divide assets in a fair and equal manner, but this doesn’t mean a mathematically equal measure. The court will seek to provide for

  1. The relative needs of each party – the spouse with the weaker economic situation may be given more as part of the settlement, such as the home, etc., unlike the spouse who can afford multiple properties.
  2. Child custody – the spouse who is responsible for primarily caring for the children would need to be awarded more to secure their welfare.
  3. Compensation for future earnings – the spouse who sacrificed their career in order to care for their family and children may be awarded more in capital in order to get back on their feet and prepare to rejoin the workforce.

Also do note that it’s not just assets that can be distributed, but also debts. Everything accrued during the marriage period may be split during the decision. This may include mortgages, credit cards, loans, and other commitments.

It is not easy to quantify the worth of being a good mother or father, but such a thing has a far greater influence than merely the number of properties or figures in the bank account. The UK courts recognize the value of the physical, emotional, and psychological support provided by the non-working party in a relationship.

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For divorce lawyers try Hadaway & Hadway Solicitors

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Weird Facts about UK Lawyers

Top 10 Weird Facts about UK Lawyers

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The United Kingdom has some of the oldest bodies of law in the world. Many of its laws and traditions were foundational for the whole concept of modern democracy. However this continuous grand tradition built over thousands of years also carries with it certain peculiarities that baffle others looking from the outside.

Here are the top 10 weird facts about lawyers and the practice of law in the United Kingdom.

1. The difference between solicitors and barristers

In the practice of law, you might consider the difference between a solicitor and a barrister like that of a general practitioner and a specialist surgeon.

Solicitors deal with clients directly, while barristers are referred to cases by a solicitor. They act as advocates in legal hearings thus they stand in court and plead the case in behalf of the client.

Unlike other countries, where an attorney may be expected to do everything from advising the client, facilitate negotiations, draft legal documents and then travel to see clients and represent them in court – solicitors and barristers have separate duties. Historically, barristers have a “right of audience” with the higher courts and was meant to be an independent operator that do not cultivate long-term client relationships.

But perhaps the most tangible difference is that a Barrister also wears a wig and a gown in court. Yes, those are a required dress code for normal proceedings.

2. The meaning of Esquire

Esquire (abbreviated Esq.) a term of British origin which in Britain, is an unofficial title of respect to denote a high but indeterminate social status. A person who graduates from Law School and pass the state licensing exam (called the Bar Exam), may add the initials J.D. which stands for Juris Doctor or the degree garnered. Once that person has gone thru the rigorous process of taking and passing the state Bar Examination, they can be referred to by the Esquire title. It is then that Esq. is written after her name, instead of J.D.

3. Barristers are required to join an Honorable Society based on an inn

A Barrister must take a one year Bar Professional Training Course in place of the Solicitors’ Legal Practice Course and then they are called to “bar” at one of the four inns where they do a yard ‘pupillage’ shadowing a senior barrister and undertaking some court work.

There are about 150 applicants in one chamber for pupillage. Thus the applicants should make the Application form very engaging so as not to bore the ones who would review their pupillage applications.

The inns are: 1) Inner Temple, b) Gray’s Inn, c) Middle Temple,and d) Lincoln’s Inn, all of which are located in London. These Inns of Court provide dining, residential, office and library accommodations to its members.

4. They have to attend fancy dinners and even karaoke

Once they qualified in any of the inn they applied for, they have to attend the twelve (12) qualifying sessions at the inn which may include fancy dinners, even karaoke (at Middle Temple, at least), in addition to lectures on legal topics and advocacy training workshops.

5. The Queen’s Counsel barristers are known as “silks”

The Queen’s Counsel are a group of senior barristers of at least ten years’ practice that are appointed by an selection panel to serve as “one of Her Majesty’s counsel learned in the law”. They appear at the bar wearing silk gowns while junior barristers wear “stuff”, or gowns made of worsted wool.

6. More than half of those studying law in the UK universities come from overseas

Law Student Applicants from Overseas is higher at 58.01% than from UK students at 41.98%. The the percentage of successful applicants from UK is higher at 72.5% than from overseas at 67.6% (2015-2016). Nevertheless, you might expect to see more than half law students to be foreign students.

The number of applications to law universities in the UK for the period of 2015-2016 was for UK students, 23,885 and for overseas students, 33,010. At 72.5% and 67.6% respectively, the results are 17,335 and 22,320 students. A grounding in UK law is not only for those who wish to establish a legal practice, but also for those who wish to do business in and around the UK.

7. Becoming a Barrister is not cheap

We’re not even talking about education fees or the price of books. You need to shell out around £ 150 for the gown alone, € 560 for the wig, plus a nice bag for £75 and £270 for the case to keep your required dress looking pristine.

Most barristers are self-employed and work in Chambers with other barristers so they share costs of accommodation. They are not allowed to form partnerships or become part of a corporation, although they can be the first resort of solicitors who represent certain clients. Unlike high-power corporate attorneys, barristers due to the cab rank rule are not allowed to refuse a case as long as it remains within their specialty.

8. Barristers in Chambers can work against each other

It is noted that about 80% of barristers around England and Wales are self-employed, the rest being employed in the agencies like the Crown Prosecution Service, solicitor’s firms, or specialized legal departments in industries, commerce, and local governments. Most of them work in shared offices known as Chambers with other barristers.

However, all barristers within a chamber are independent from each other and may often act opposing each other in the same case. By contrast, solicitors in the same law firm are prevented from doing so for sake a conflict of interest.

9. No overtime for Salaried Barristers and Solicitors

A solicitor is paid better than a barrister right out of the gate, though their actual pay scale differs greatly between extremes. For Barristers’ practice of Law, the average NQ (Newly Qualified) Barrister for Criminal Law is similar to Family Law, at £20,000. Of course practitioners versed in commercial law have higher costs at £70,000.

According to 2016 statistics, these are the starting salaries:

Trainee Level £18,000-43,000+ £12,000-60,000+
Newly Qualified £50,000-90,000+ £73,000-300,000+

A City trainee solicitor starts on a salary of £36-40k per year and jumps to £60-70k once they are fully qualified (which takes two years). But then they work 40-70% more than their contracted hours and, aside from social exclusion amongst their non-lawyer friends, they do not get overtime.

10) Barristers are not allowed to advertise

A solicitor is a non-trial lawyer that engages the client directly and handles legal representations and transactions. They don’t, unless they are a solicitor advocate, make court appearances. Barristers deal with the court and doesn’t deal with the paperwork, they are instead retained by the solicitor on behalf of their client. The client never actually directly contacts the barristers.

Going back to the doctor’s analogy again – having a barrister is like your doctor referring you to a heart surgeon. After the operation the surgeon has no more to do with you, but your doctor will take care of your hospitalization and recovery.

A barrister, like a surgeon, is not allowed to advertise their skill and put their work out on the open market but instead get work via word of mouth, repeat business, and being contacted by relevant agencies. Solicitors however are allowed to advertise and can move around the country, doing what most people would visualize as lawyer-y work.

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