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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33827
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Financial Order For Divorce - how to apply for new claim

Customer Question

I had my final hearing for financial order in February 2014 as part of my divorce. During the hearing the Judge excluded my request for £72000 to be added on the marital asset for a property my estrange husband and I built abroad for our retirement income. The rental from the property being £12000 per annum since 2008. My estrange husband lied to the Judge that the income disclosed  whilst we were taking a mortgage for the then matrimonial home in 2009 was an error and that  he had £12000 savings in his accounts at that time and that what he was referring to. The Judge accepted this as true and set aside the £72000. My estrange husband has been asked by me since the hearing to release a a copy of this statement of his savings of £12000 which in fact will show that this was the rent monies we received in 2009 for period November 2008 - 31 October 2009. He has not release it. In the mean time, I have got Halifax, the mortgage provider  of our then matrimonial home, to disclose the income given during the application process for the mortgage in 2009 and now want to go back to the court and ask for them to get my estrange husband to give me my share of the £72000 as the decision to exclude the £72000 was based on false evidence. He  has failed to release the bank  statements of this £12000 which will in fact show the Judge the rental is £12000 per annum was what he was referring to and I have also tracked £15000 in his accounts for rental received for 2009/2010 that was transferred to us in Feb 2011. How do I go about making this new claim for the court to deal with this matter and issue court order for £36000 plus interest to be paid to me as my share of the £72000.

Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Are you saying that your ex denied that you owned the property?
Clare
Customer: replied 2 years ago.

No, he told the judge that the rental for the property was substantially less and claimed he has spent the money. At the time of the Final Hearing, the disclosure made about our income to Halifax Building Society was not available for me to show the Judge the rental from the property is £12000 and that the rents monies are still in the accounts held abroad in his name and that is where tenants paid the rents. I have since got Halifax to disclose the rental income submitted to them for the property as £12000. That letter was received on Tuesday this week. I now need to go to the court and tell them that a total of £72000 rental was not accounted for and I need my ex to disclose the bank accounts were the rents monies are paid. The property is still in existence. The Judge has concluded the property is marital asset. I need to know how to go back to the court and ask them to get him to release the rent bank accounts statements for 2008 -2014 so that my share of the rents monies is given. It is monies for my pensions. The property was built using part of my own savings and pensions and so I need the rents monies I am due to be paid to me. Hope this is clear.

Expert:  Clare replied 2 years ago.
Hi
Just to check - the Order made in February was imposed by the court - not agreed between you during the hearing process?
Clare
Customer: replied 2 years ago.

Yes is was imposed and my issue is the court did not factor the £72000 because the Judge claimed he did not have sufficient information. That said, the crucial issue was whether the rents was £12000 pcm or not. I needed Halifax disclosure where the rents was disclosed and I now have more evidence to show the court the rent is £12k and the monies were not spent as no evidence of spent have been shown in any court of law. . I simply need to know the process to follow to get the court to deal with the rent monies with the disclosure and other evidence of the rent monies I now have.

Expert:  Clare replied 2 years ago.
Hi
I am afraid that it is not quite that simple as it will depend on three factors
1. Why was the information not available on the day (why were you not able to obtain it in time)
2. What reason the Judge gave for going ahead when the information was not available
3. What was the actual percentage division of assets between you
I look forward to hearing form you on these points
Clare
Customer: replied 2 years ago.

The reason the information was not available on the day is because :

1. I asked Halifax Building Society to release the information but they said due to data protection act they needed Mr Elliott to request it or I should get a court order if he fails to do so.

2. I requested a court order as part of the papers submitted about the rent monies during the final hearing citing the rents is £12000 and a total of £72000 must be added on the marital asset and that Halifax requested a court order to release the figures if the Judge will not add it. But that fell on deaf ears by the judge despite previous judges for FDA and FDR assuring me it will be dealt with during final hearing.

3. The Judge asked Mr Elliott about the figure of £12000 for rent monies and he lied that at the time of disclosure of income with Halifax he had £12000 savings and that what he was referring to on the Mortgage application.. He however did not disclose the bank accounts where this £12000 savings was and the Judge did not ask him about it and claimed I made an error without seeing any of the evidence.

I immediately told him that I did not make an error and I want to see this bank account where this savings of £12000 was so that I can confirm it to be the first set of rent monies received in 2009 for 2008/2009. I have since asked Mr Elliott (ex husband) for the bank statements and he refused to release it. I also contacted the Ombudsman about the practice the Judge used relying on verbal evidence with credible validation. But was told to put formal complaint to the court for maladministration and if not dealt with I can contact my MP to apply to the Ombudsman.

I am self employed and most of my debts in my name was classed as business debts and was excluded and that rent monies is supposed to be part of my pensions. My pensions from past employers is half of my ex pensions assetvalue and he kept this entire pensions as part of the division of asset due to his age 58 years as I said I want a clean break order. I had the matrimonial home which had equity value of the same as the property abroad which he has to keep. The thing is I cannot allow him to take the entire £72000 just because the Judge did not investigate properly and now that the disclosure from Halifax is out, I want to know how to re-open this issue of £72000 rent monies as a court order to release the bank statements of this £12000 he told the Judge existed in 2009 when we had the mortgage will show that this money was in fact the rent monies and that the figures disclosed for the mortgage was correct as confirmed by the statement and subsequently rent monies should be released.

To be honest, the Judge relied on verbal evidence for most of the part from him, and most of these evidence can now be shown in court were lies as I have got the documentary evidence to prove it. I simply need to know how to proceed with it. So far taking the matter to the Ombudsman for court maladministration due to their failure to investigate properly despite being told that evidence exist with Halifax up to the point of the final hearing. I am 100% confident that if my ex is asked to release this savings bank accounts of £12000 he mentioned on the day of the final hearing, the matter will be quickly resolved. As what the Judge failed to ask was how the savings came about and what the evidence will show is the £12000 is indeed the first rent monies we received in 2009.

Expert:  Clare replied 2 years ago.
Hi
Why was this issue of the lack of statements not addressed BEFORE the final hearing as it should have been?
Clare
Customer: replied 2 years ago.

Mr Elliott was asked during the court hearing of the 2nd September to provide details of where the rent monies have been going- subsequent hearing have all requested him to do so and at one point a penal notice was issued. This was an order issue on him when I challenged his claims that he has spent the funds asking for the evidence. He failed to do so and Judge Wright on the 2nd September ask him for the evidence again and told me it will be dealt with at the final hearing.

Mr Elliott re-submitted the same papers which was not a clear bank statement. He submitted his father's bank accounts showing that it is his father's account that the monies have been going. The Judge did not even ask any question about why the monies were being put in his fathers accounts even if he was the agent managing the property and clearly that means we cannot identify which funds are the fathers and which are the tennants and for that matter which spends are the fathers and which are property management related. In simple terms, the Judge during the final hearing did not even look at any of these document to ask him these basics questions. Up to the final hearing in Feb 2014, he has never said that he had 12000 pounds in savings accounts and that was what he was referring to at the time he disclosed rent income with Halifax as £12000. The first time he actually gave the Judge this information (or should I say the court) was during the final hearing when I crossed examined him. In short, I would have expected the Judge to ask for evidence of this bank accounts and adjourn the matter as I did tell the Judge it was a lie and I have evidence to prove it. However, the Judge blindly accepted his verbal evidence and claimed I made the error and it was as a result of this I had to go back to Halifax after the hearing and told them that they have to release the information otherwise I will make formal complaint to the Ombudsman. I also told them I was pursuing the matter with the Ombudsman. Then in July 2014 they determine they will release the document where he disclosed and signed for me to take to the court as part of my complaint for their negligent and what I call maladministration.

Sorry in short, the first opportunity to deal with this was post final hearing and until I had the Halifax disclosure I could not do much.

Expert:  Clare replied 2 years ago.

Hi

Why did you not invoke the Penal Notice when he failed to produce the evidence?

What was the actual division of assets in the final Order

Clare

Customer: replied 2 years ago.

Well, as the Judge accepted this evidence blindly, during the final hearing, all I could do was send Mr Elliott letters to issue the bank statements. He did not. So if I can invoke Penal Notice on him to produce the evidence, I need to know how to go about it.

The division was he keeps his pensions value 235k because he is 58 and I am 48. My pension is value £90k

Matrimonial home value - £124k equity I am keeping.

My business debts and income excluded and I keep that. Just as he keeps his job and my business is really self employment at the stage of the final hearing. So it is me that is the business and all the debts of it I keep.

He keeps the house abroad - £124k.

He claimed that I have the potential for millionaire status telling the Judge about my books and qualifications and all sorts around that.

The rent monies of £72k is in his possession and that is what I now need to deal with.

Customer: replied 2 years ago.

Please can you tell me what you meant by invoke the Penal Notice. Now that I have Halifax disclosure can this be done.

I need to know what my options are. Obviously I am pressing on with the complaints about the maladministration but I still nee to know how to get this matter resolved. What form do I need to invoke Penal Notice and when can it be done? Halifax disclosure was only received this week.

Expert:  Clare replied 2 years ago.
Hi
You said that you obtained a Penal Notice for your ex to produce the evidence.
When he did not why did you not take the matter further?
So the division of assets was 50/50?
Clare
Customer: replied 2 years ago.

I have not obtained penal notice for him to produce evidence. I am asking if I can do so? If so, how do I go about it. At any rate what I need to know is how do I get this rent monies issue dealt with. I wont say the division was 50:50 but that does not matter to me now. The real issue is the £72000 was not included and I want to know how to get this sorted now that I have the disclosure from Halifax. Hope this is clear now.

Expert:  Clare replied 2 years ago.
Hi
I am sorry but in fact you cannot start further proceedings and get an Order just dealing with this sum.
The Order made by the Court was made in Full and Final Settlement of any and all claims you have against each other and you cannot make a further claim.
The only way that you can address this issue is to re-open the Order that was made in February.
To do that your first step will have to be to get Permission from the court to appeal the Order despite the fact that the time limit for an appeal has passed.
To do that you need to show that there was deliberate falsehood on the part of your ex (no problem there) AND that there was no way that you could have known about this and brought evidence of it before the court.
This second part is the problem area.
From what you have said you WERE aware of this account and you COULD have forced your ex to make full disclosure PRIOR to the final hearing but did not do so,
At a Final Hearing the Judge does indeed make a decision based on the Verbal evidence as backed up with the paperwork - which is why you needed to ensure that all the paperwork was there.
The Judge is not investigating anything - he is listening to the evidence from each party and making a decision based on that.
In an early reply you said
Mr Elliott was asked during the court hearing of the 2nd September to provide details of where the rent monies have been going- subsequent hearing have all requested him to do so and at one point a penal notice was issued
If a Penal Notice was issued and ignored then it was up to you to go back to the court, before the final hearing, and point out that he had not obeyed the Order and ask for him to be sent to prison until he did so,
If you did not do this then I am afraid you will struggle to persuade the court to appeal the matter.
If you had solicitors acting for you then you may well have a claim for negligence against them.
Please ask if you need further details
Clare
Customer: replied 2 years ago.

Hello

Just few clarification, the Judge did not make a decision that is backed up by the paper work infront of him. My ex did not provide any paper work showing the bank accounts where all the rent monies went and so the Judge did not have such paper work despite the previous order for him to do disclose the accounts and movement.

The Judge did not have paper work to back the witness statement my ex gave him that he had £12000 in bank accounts. No paper work was shown to the Judge by him.

The Judge was told that I needed Court order to get Halifax to disclose the rental values declared by my ex but the Judge did not do so and relied on the verbal evidence with no paper work.

I was aware of the bank accounts and did force my ex to disclose them in all hearings leading to the final hearing. In first hearing of 28 January I obtained a court order for him to disclose the monies and the bank accounts, he failed to do so and I pressed on with it and ask the court to enforce the order and on 10 June a penal notice was issued. Then on 2nd Sept, he confessed he did not spend the money on university fee for kid as he had lied when I revealed evidence to the contrary. Then he was asked again to disclose the accounts for the rents and he submitted a paper work which is incoherent for the final hearing. So in truth I did get the court to issue and enforce orders. However we had different judges for each hearing and so none were ever in tune with the case. From what I can glean from this, I am going to focus on taking a court negligence for failing to investigate and relying on witness statement to dismiss a claim and the witness statement was not backed up by any paper work.

Customer: replied 2 years ago.

The summary conclusion of my explanation of event was wrong. I have already provided clarification on this. As the conclusion was wrong the advise given is of no value to me.

Expert:  Clare replied 2 years ago.
Hi
I am sorry that you felt my service as poor meaning that I get no credit for my time and which is not necessary for and does not trigger a response.
In fact the judge did indeed make his decision based on the Oral evidence and the paperwork that he has in front of him.
The fact that you went into the final hearing without having ensured that all the paperwork was available.
When the court issues a penal notice i the person who has asked for it to be imposed has to ensure that if the order is not abided by then that person applied for an order committing the offender to prison.
That is NOT the responsibility of the court
The court does NOT investigate anything at all - that is not their role, nor can you sue the court for negligence.
The Judge made his decision on the evidence he had seen and heard
It was YOUR solicitors job to ensure that all the necessary evidence to support your claim was before the court
Clare
Customer: replied 2 years ago.

I understand what you said, but the issue is this:

1) 10 June 2013 - penal notice issued for him to release information and document. He release document on 24th June 2013. When I noticed the annomalies I asked for more information to be released which he did one week before the hearing of 2nd September 2013.

My mum died on 28 June 2013 and I had that to sort and funeral was 19 July so this was not priority as I had to sort out the funeral then. That said I moved on to get the above sorted for the 2nd September hearing

2. 2nd Sept hearing, I told the Judge that the paper work was not complete and he ordered him to provide more papers about the rents monies. And he should release the information one week before final hearing of 3rd February 2014. So when I saw the papers he released were still not complete, the only time left to deal with this was final hearing where I told the Judge that the papers submitted were not correct and incomplete and the rents was £72000. That is the sequence. If like you said it is my responsibility to have ensured the papers presented at the final hearing was complete, then the court order for him to submit the rent papers should have been much earlier than one week before the final hearing which would have given me time to deal with it.

Expert:  Clare replied 2 years ago.
Hi
Excellent - that in itself is your possible ground for appeal.
You did not set the disclosure deadline the court did, and what is more you told the court that the papers were wrong but the judge went ahead with the final hearing in any event.
Your ex went on to commit perjury and what is more you can prove it!
That does give you a way forward - but you MUST use that reasoning as it is the progression that you need to justify seeking an appeal out of time
It was clearly not your fault that you coulld not force him to make the disclosure - and the lengthy history of evasion should have pushed the judge to give YOU the benfit of any doubt over the actual position.
Appealing out of time is not an easy process it is described here
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52
If your ex was represented a preliminary letter setting out the fact ( remember the progression ) mat lead to an out of court settlement
Clare
Customer: replied 2 years ago.

Thanks. I will read the link sometime next week. Can I not claim compensation for the loss caused due to the Judge's failure to set a correct time line for disclosure on the 2nd September and the failure on the part of the Judge during the final hearing to press along with the judgement in the absence of credible evidence on the rental figures- no bank statements showing the actual amount of rents paid by the tenants to his bank accounts was shown. All he provided was written explaination. No tenancy agreement signed by both parties was shown to the Judge but he accepted rental figures from ex. And I queried all of this during the hearing. When ex said he had £12000 in 2009 in bank statement (which is rent monies) I asked for the evidence of the statement, he did not show any, and Judge accepted his verbal statement as fact. I only need to know whether this is not mal administration by the court and worthy of Ombudsman investigation for compensation. I understand all the hearing is on tape and if I have to get the tape transcribe I will as what happened that day was like two men in a court bullying a woman and I feel strongly against such behaviour.

Expert:  Clare replied 2 years ago.
Hi
No I am afraid not - the Judge was working within the Court Rules it is not Maladministration and the way forward is an appeal not the Ombudsman
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33827
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

Hello Again, I now need to file this application for permission to appeal. Is there a special form I need to complete. I have put together the papers to support my case and simply need to know if a special form is to be used or a letter with my case to justify why the appeal must be approved. In fact, as it turns out, the rent monies are security to mortgage of my home which means my Ex wont be allowed to free himself from the liability of the mortgage if he does not give me my share which I will use to provide Halifax as part of the security of the mortgage. Let me know if you can help and I will pay for the service. The link you sent me has lots of information and is very confusing.

Expert:  Clare replied 2 years ago.
Hi
the form you need is here
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n161-eng.pdf
You may also find these articles useful
http://www.dunnandbaker.co.uk/wp-content/uploads/2013/10/A38-%E2%80%93-appealing-an-ancillary-relief-order.pdf
http://www.insidetime.org/resources/WSDocDownload/I_want_to_appeal_What_do_I_do_EX340_CourtService.pdf
Clare
Customer: replied 2 years ago.

Thanks

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