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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33829
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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I would like to make a claim against my ex husband in

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Hi,
I would like to make a claim against my ex husband in small claims court.
I transferred him £10,000 into his account 3 years ago for the purpose of saving up for a deposit to buy a flat together. At that time he reassured me that this money had been put away in his savings account and would go towards the deposit for a flat.
We never ended up purchasing a flat, as our marriage broke down and we separated a year and a half later.
We are currently in the middle of divorce proceedings, I have signed the decree nisi.
We do not have any joint assets or matrimonial home, hence I was advised by my solicitor that there is no point in me pursuing an ancillary relief application.
Also because we were only married for 2.5 years, my solicitor told me it is very unlikely I would be able to claim spousal maintenance as my ex has always paid child maintenance for our 2 children who live with me.
Regarding the issue of the £10,000, my ex's solicitor disclosed that this money had been spent on the family's living expenses during the course of the marriage, and could not be ringfenced.
I would like to know what are the merits of this case if I wanted to pursue it in small claims court, and try to claim back the £10,000 that my ex owes me.
Also would I be able to represent myself or would i need to find a solicitor to represent me?
Regards,
Sarah
Submitted: 11 months ago.
Category: Family Law
Expert:  Ash replied 11 months ago.
Hello Sarah my name is ***** ***** I will help you.Can you show you transferred this sum please?Alex
Customer: replied 11 months ago.
Hi Alex, yes I have bank statements from 3 years ago to show that I transferred this money into his account, it was done in 3 separate transfers.
However I do not have a written contract or any proof in writing to verify what the purpose of this money was. He could easily argue that it was a gift.
Expert:  Ash replied 11 months ago.
Yes he could, but then you would need to persuade a Judge that it is not. Its a small claim so costs are limited to an issue fee and hearing fee. You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.If the claim is for £10,000 or less it will be a small claim so you will not need legal representation. Over this value you would need representation for trial.Can I clarify anything for you about this today please?Alex
Customer: replied 11 months ago.
Hi Alex,
You've mentioned that I need to write and set out my losses, and request a refund within 14 days, if not say I will go to court in 14 days.
Is this a letter that I would need to write myself to my ex husband or is this a proper court document that I need to obtain, fill out and send to him by special delivery?I've got numerous emails as well as solicitor's letters from divorce proceedings requesting that this money be returned from the last 12 months. However he has ignored all requests and the only thing his solicitor said was he has spent all this money on the family's living expenses and it cannot be ringfenced.Sarah
Expert:  Ash replied 11 months ago.
This is just a letter you write yourself. You could just issue proceedings now but you should give one last attempt. Dont forget you can also claim interest at 8% per year under S.69 of the County Courts Act 1984. Does that clarify? Alex
Customer: replied 11 months ago.
Ok perfect, I will do exactly that give one last attempt and write a letter stating what you have said. I am very sure that he will just ignore it.
I think it will be easiest for me to initiate proceedings via the moneyclaim website you have mentioned. Do I need to wait exactly until the 14 days have passed and I've not heard anything before getting onto this website?
Also is initiating a claim on this website a long winded process or is it fairly short and straightforward? As in will they ask me to send in any proof of bank statements, current income etc before they can start processing my claim?
Do I need to mention that I am entitled to claim 8 % interest per year in the letter to the ex, or is this just information for myself?
Expert:  Ash replied 11 months ago.
I am sure he will. You dont have to wait exactly 14 days, you can wait 28 or however long you want. You have 6 years from the date of payment to bring a claim. A small claim is straight forward and over in either 2 weeks if not defended or 4 months if defended.If defended and there is a hearing then you need to submit any evidence 14 days beforehand.Does that clarify?Alex
Customer: replied 11 months ago.
Ok brilliant makes sense to me.
The only evidence that i will be able to come up with is the bank statements showing that i transferred this amount into his account. And I will have to convince the judge that this was not a gift but in fact money designated for a specific purpose.
Would these bank statements need to be submitted 14 days before? Also if defended, will it usually be over and done with after one hearing?Sarah
Expert:  Ash replied 11 months ago.
Ok - yes it would be 14 days beforehand and yes its one hearing.Does that help?Alex
Expert:  Clare replied 11 months ago.
My name is ***** ***** I have a been a family lawyer for more than 30 years.I am afraid that in fact you cannot use the Small Claims procedure to recover these funds
Expert:  Clare replied 11 months ago.
You can only pursue it as part of the financial side of Divorce Proceedings
Customer: replied 11 months ago.
Yes all clarified thanks so much for your help and time, this has been very useful. And with the advice you've given me, I feel fairly confident about going about this on my own without the help of a solicitor.
Thanks a lot.
Customer: replied 11 months ago.
Hi
Can you please explain why i am getting contradictory advice from two different solicitors?
Expert:  Clare replied 11 months ago.
Again I am sorry but you have been misled - you CANNOT make a claim in this way - these are now matrimonial monies and will have to be dealt with within the divorce proceedings.
Expert:  Clare replied 11 months ago.
If you issue such proceedings they will eventually be dismissed - and you will have lost the money that you have paid in fees.
Expert:  Clare replied 11 months ago.
However I do feel that your matrimonial solicitors have been less than robust about recovering your capital with the financial side of the divorce
Customer: replied 11 months ago.
My solicitor has tried resolving this issue during divorce proceedings but to no avail. My ex husband has just ignored it for the last 12 months and claims that this money has all been spent on the family's living expenses and cannot be ringfenced.I simply cannot afford to issue ancillary relief proceedings against him and pay up to another few thousand pounds in legal costs to my solicitors.
I have also been told that I would not qualify for spousal maintenance either, we were only married for 2.5 years and he pays child maintenance for 2 children since we separated last year.Mediation is not an option because I had a non molestation order against my ex.When I asked my solicitor about making an application for ancillary relief myself, I was told that I do not have strong enough grounds to do that.
In fact my divorce solicitor also advised me that if i wanted to recover the £10,000 from my ex, I would have to take it to small cliams.
Expert:  Clare replied 11 months ago.
No comment on my opinion of your divorce lawyer.What assets and debts are there and what income do you each have?How long were you living together and how old are the children?
Customer: replied 11 months ago.
There is no matrimonial home, and no joint assets. He refused to disclose anything on the form e which was suggested during divorce proceedings.As far as debts go, everything was in his name so I am not aware of those.We lived together for 2.5 years and had two children in this period of time. The children are now 2 and 3 years old.
At the time we separated, they were 6 months, and 15 months old.
Expert:  Clare replied 11 months ago.
What income do you each have?
Customer: replied 11 months ago.
I did not work during the course of the marriage, except for only 3 months which was a temporary contract. The rest of the time I was either unemployed, or was at home looking after one and then later two babies.
His income from what I recall 2 years ago was £3,000/month after taxes. I did not have any income.The temporary work contract that I had undertaken for 3 months, that was when I earned about £10,000 in the course of 3 months, all of which was later transferred into his account.
Customer: replied 11 months ago.
At present time, I am still not working and currently claiming income support as a lone parent and other benefits such as child benefit, child tax credit and housing benefit. I have been on benefits for the last 13 months now since we separated.
Customer: replied 11 months ago.
Also he pays £576 per month in maintenance and an additional £124 in childcare vouchers.
Expert:  Clare replied 11 months ago.
Does he ever have the children overnight?
Customer: replied 11 months ago.
Yes only two overnights twice in the month.
Customer: replied 11 months ago.
this arrangement only started in Dec 2015
Expert:  Clare replied 11 months ago.
Does he pay child maintenance via CMS/CSA
Customer: replied 11 months ago.
No it was arranged between us privately. He was initially paying £500/month but increased it to £576/month in January 2016.
He started paying it straight after we split, so he started paying last Feb 2015.
Expert:  Clare replied 11 months ago.
Have you seen any evidence of his income?
Customer: replied 11 months ago.
Not yet, that is still ongoing. His solicitor just wrote to us a few weeks ago saying that now my ex is willing to exchange form e's and is currently preparing his.
I have also been instructed to prepare mine.
The reason that i know that he made £3,000/month 2 years ago, was because of a payslip that I saw at that time. I do not have this in my posssesion.
Customer: replied 11 months ago.
Essentially it seems that I will have to be nearly £10,000 just in legal fees to take this matter to court under ancillary relief proceedings and try and recover the money that I gave him a few years ago in this way?
I was told over the last year that I would have to pursue the issue of getting my £10k back in small claims.It doesn't seem very logical to take this matter further if this money can only be recovered under ancillary relief?
Expert:  Clare replied 11 months ago.
OH it is I promise.If you felt able to take the matter to the Small Claims Court on your own there is no reason why you will have to pay out thousands of pounds in legal fees to deal with the finances.From all that you have said it seems unlikely that the Form E he presents will be full and accurate - you must insist on seeing two years worth of bank statements.If he will not do so then I suggest that you issue the Financial Applictaion in person - the forms are not difficult and you will be entitled to claim fee remission.You certainly have enough grounds to do so - he clearly has an income in excess of £3000 a month and YOU are on benefitsIf nothing else you can demand a lump sum of £10,000 payable by instalments at the very LEAST
Customer: replied 11 months ago.
Oh i see. So as an option can I make an application for ancillary relief as a litigant in person? As I cannot afford another few thousands pounds in fees to pay a solicitor to represent me.I believe the application fee for a financial relief is £255? Can I state on this form that I would like a lump sum of £10 k payable in installments?If this is a viable option then I would certainly like to proceed with it.
Customer: replied 11 months ago.
Just wanted to add as well, at first the ex insisted on a D81 form but then after a few letters of solicitor's correspondence, agreed to exchange form e's.I doubt that my solicitor would agree to writing to him and asking for the last 2 years bank statements. My current solicitor seem very eager to close this case, or that I instruct them privately to take the matter further.Can I apply for ancillary relief as a litigant in person straight away? Or do I need to wait till I've heard from my ex through solicitors.
The solicitors correspondence on the financial matters has been ongoing since September 2015.
Customer: replied 11 months ago.
Sorry i've just re read your message again. You suggested to demand that he present 2 years worth of bank statements, and if he fails to do so, then make an application for ancillary relief as a litigant in person?
Because this issue has been dragging out since last Sept, would it be necessary to first propose exchanging 2 years worth of bank statements, or can I make an application to go to court straight away?
I just feel like he will carry on wasting more time and will drag this out even more.
Expert:  Clare replied 11 months ago.
Yes you can deal with the finances as a litigant in person and given the approach of your solicitor to dat this may be the best way forward.I suspect that the Form E that your ex provides at this stage will have gaps in it big enough to hide elephants in - and my fear is that your solicitor will simply accept it
Customer: replied 11 months ago.
Yes Clare you are absolutely right, my solicitor could care less. And because the form E only requires disclosure from the last 12 months, my ex would only need to go back to April 2015 (we had already been split up for a few months at this point), and I feel that by this point he would have already taken necessary measures to hide certain finances or monies.Can I apply for ancillary relief now? Or do I still need to give my solicitor another chance to write to the ex and propose on exchanging 2 years worth of bank statements?
And if you so, how long do I have to wait for a lack of response before I can initiate the ancillary relief proceedings?If i am to rely on my solicitor to request this, I feel like it could take an indefinite period of time and things will just continue to drag out through useless correspondence between solicitors.
Customer: replied 11 months ago.
Because the form e requirements only stipulate last 12 months disclosure, this is why I feel that my ex wasted a few months before giving his consent to this.
The exchange of form e's was suggested to him last sept.
Expert:  Clare replied 11 months ago.
At this stage I would suggest two things.The first is to tell your solicitor to give a three week deadline for the exchange of Form E and say that you wish to have Bank Statements for the last 2 years - not just the last 12 months.At the same time you need to attend a Mediation Information and Assessment meeting to get the certificate that says mediation is not appropriate in your case.
Expert:  Clare replied 11 months ago.
Then you will be well placed to take the matter forward as a Litigant in person and file your Form A - and you may well be eligible for Fee Remission to help with the fee.You will already (hopefully) have received a sort of Form E which will allow you to start sorting pout what questions you have (which will include exactly where did the £10,000 go)
Customer: replied 11 months ago.
Would I still need to attend a Mediation Information and Assessment meeting though I have been told that mediation is not required in cases of domestic violence?
But if you think that this certificate would strengthen my case, then yes I would like to obtain it. Do I need to find a mediator myself or ask my solicitor to provide me with one? Also would I have to pay the costs of one mediation session to the mediator? I don't mind if I have to for the purposes of this case.
And I am happy to follow your advice exactly and propose the 3 weeks deadline to my solicitor.Yes I have received a form E type of document that I am suppose to fill in.
Expert:  Clare replied 11 months ago.
Attendance at the MIAM is a pre requisite for issuing the Court application.Do find your own - and Legal Aid is still available for mediation!
Customer: replied 11 months ago.
Hi Clare, I'm really pleased with the advice that you've given me so far.
Do you feel that the merits of this case are sufficient enough?
All I am interested in is trying to get back that money which belongs to me, and was never fulfilled for the purpose that it was intended for. So all I am really interested in is asking for a lump sum of £10,000 payable in installments.Do you think my ex could sufficiently argue that this money was given to him as a gift or to meet the family's day to day expenses? And if the judge agrees with that, then I might not be entitled to anything at all?
Customer: replied 11 months ago.
Also just to clarify, would it make a difference that I was given a few cash gifts from my parents over the last two years? The total value of these cash gifts from my parents would be about £4.000- 5,000 over the two year period.Would this weaken my entitlement to ask for a lump sum of the £10,000, if the judge feels that I already have sufficient capital and do not need anymore.
Customer: replied 11 months ago.
Finally as I originally mentioned to your colleague, the only evidence I've got of transferring the 10 k to the ex is bank statements from 3 years ago. This amount was transferred in 3 installments.
I don't have anything in writing to state what the purpose of this money was.
What worries me is that he might have a strong argument in saying that I gave him this money as a gift, or that I gave it to him because he was in financial difficulties. Though he probably wasn't because his salary was sufficient enough to meet the family's month expenses.
I am worried that this could potentially weaken my case to ask for this lump sum amount.
Customer: replied 11 months ago.
Hi Clare, sorry for the multiple messages just wanted to update you that:
1) I have found a pay slip of my ex's from 2 years ago, his net pay at that time was £3,067
2) I have also found a solicitor's letter from 3 years ago stating a property purchase of a shared ownership flat. We were interested in purchasing this flat 3 years ago. There is a mortgage data form as well which states that we were going to put down £10,000 as a deposit
3) I have bank statements from around the same time as these letters to evidence that I transferred £10 k into his account.Would this be stronger evidence to suggest that I only gave him the £10 k for this purpose, and not as a gift or for any other purposes?
Expert:  Clare replied 11 months ago.
Please do not worryI rather suspect that once you have fought him and got his financial disclosure you will find that there is more going on than you knew.This is not about gifts or loans - it is about needs - and your need for a lump sum to protect you against unexpected bills etcTake each step as it comes - all you are investing is time and energy - oh and spouse maintenance is a definite possibility!
Customer: replied 11 months ago.
Thank you Clare, this has been very helpful.
It is good to know that my pre-existing savings will not weaken my claim to ask for the lump sum of £10 k.Regarding spousal maintenance, I was told by my divorce solicitor that it is unlikely I would qualify for it, given that it was a short lived marriage (only 2.5 yrs) and because the ex pays child maintenance.
Is this not accurate then?
I will apply for both spousal maintenance and the lump sum when filling out the form A.
Expert:  Clare replied 11 months ago.
At this stage you apply for everything - tick all the boxes.Your marriage may be short but you have two small children and a huge difference in your incomes.Some short term spouse maintenance is a real possibility.With regard to the capital position there is a lot to work out - but some accounting of what has happened to the savings and income given that there was not house purchase will be reqyured
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33829
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 11 months ago.
Hi Clare,Do you mind clarifying what you mean by your last statement in terms of some accounting of what has happened to the savings and income?
Do you mean that my ex will have to evidence that the money I gave him has all been spent?
Or will I need to explain what I have been doing with my pre-existing savings?I've always had a few thousand £ in my account as emergency savings. This was additional to the 10K I gave him for the house purchase. This additional money in my account is cash gifts given to me by my parents over the years, which they transferred into my account. I have held onto this for unexpected bills, benefits being stopped, any unforeseen debt or emergencies etc.Would this hinder
Customer: replied 11 months ago.
sorry please ignore the last sentence
Customer: replied 11 months ago.
Hi Clare,Sorry I just wanted to add, I had a look online and it says that mediation may not be appropriate in cases where there has been domestic violence.
I actually got a non molestation order against my ex partner last year, which was then changed to undertakings. The time period for this already came to an end last November.
Would I be exempt from mediation on these grounds? I think it says page 9 of the application form for a financial order allows you to state why you think you are exempt from mediation.
Do you mind clarifying whether I could rely on this exemption or should I give mediation a go given the undertakings have now come to an end?
Expert:  Clare replied 11 months ago.
I have not forgotten the follow ups - but was in court for a lengthy day yesterday and have played catch up today - I WILL get back to you

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