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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33814
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I have obtained a penal notice to my wife who has not

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i have obtained a penal notice to my wife who has not complied with our divorce proceedings.The court ordered on the 16th of August that she submit her form e within 7 days of being served the penal order.I thought the process server had served the order on my wife but he could not find her,she now has no fixed address and the process server has been to all the addresses she could be at but no luck.She has been avoiding the divorce and the court is already satisfied that she is un co-operative.I have a statement from the process server that no trace is available for her,i believe she is at her mums address but the server cannot get a answer from that address.What do i do now to apply for the court for it to have the order enforced ?is it still the application to court for enforcement/ commital due to my wifes non compliance and the fee of £155.
Submitted: 6 months ago.
Category: Law
Expert:  Clare replied 6 months ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

For clarity - the Order has not yet been served on your ex?

Customer: replied 6 months ago.
No.the reason for this is she has been avoiding the divorce process intentionally .She was served the divorce papers via a process server back in February. The process server found her living with a friend .she instructed a solicitor then but the solicitor had to close her file as she disappeared again.she did not file her form e or attend court appointments.finally I obtained a penal order ,which had to be served on her.the judge told me to get a search agent and process server. No trace was found for her by the server and the process server has been to all the possible addressed she could be ,family and friends and they all deny seeing or knowing where she is.search agent and server have given an extensive report and said there is nothing more that can be done as she cannot be traces and cannot be found .So I have decided to apply to court with the report and chronology of her last evasiveness dating back 2 years and say she cannot be found because she is intentionally avoiding service and divorce and court proceeding.I brought this up with the judge at the time she granted a penal order on the 16th of August and told the judge that it will be near impossible to serve my wife with the penal order as she has been extremely evasive and now would be hiding somewhere that we may not find her to serve the order.The judge said obtain the report from your process server either serve her or if not possible to serve her submit the report to court and we will decide the next step.I asked the judge then who was very helpful that if the process servers report is thorough and reports she cannot be traced and served personally as I believed whithout doubt she would be hiding that would the court decide to enforce the order anyway ,the judge informed me if it's satisfactory and that is believed she really is avoiding service intentionaly as before she said "we will look at it" she then said to get the process server and the report and submit it to court .I now have the report that says she cannot be traced to any address
Customer: replied 6 months ago.
I may add the reason for her evasiveness and total lack of engagement in the divorce is because she has committed perjury and fraud that she knows will come out in the divorce case and her form e.this may not be relevant to your answer but it nevertheless is of clarification
Customer: replied 6 months ago.
This is why I was positive she would hide to evade this order being served on her and brought it up in court
Expert:  Clare replied 6 months ago.

What financial order are you looking for?

Customer: replied 6 months ago.
I am looking to settle all financial ,money from both joint bank accounts both personal and business which was in joint names .she took all the money from both accounts and left me broke.she also left me in negative equity in the property we own jointly .I live there but she left and she is not interested in the property as the value is not covering the sale etc and our daughter is 16 who lives with me whom she does not contact and owes maintenance which the CSA cannot recover from her.she left me in a,nightmare situation ,took anything of value and now she knows this will all come out in our divorce so she has been evasive and hiding .refused to file her form e or attebt ant court appointment.
She simply does not care about anything as long as she does not get caught or have to deal with the divorce or attebt court.The court is very satisfied so far,granted me all expenses to be paid by her, I have decri nisi , penal notice for her to file her form e and now a report that shows she cannot be traced as she is hiding.Am I right to assume that I should submit the report to court and say she cannot be traced as she is again being evasive and let the court decide ?There is nothing more I can do
Customer: replied 6 months ago.
Furthermore I have posted cooies of the penal order to all the addresses she is in contact with ie friends and family and I am positive she will pick a copy up .Can I apply to court with all this evidence and information and ask that the court deem it served as from her past evasiveness and ask the order to be enforced ?
Expert:  Clare replied 6 months ago.

What financial order are you asking the court to make?

Customer: replied 6 months ago.
The order is for her to file her form e
Expert:  Clare replied 6 months ago.

No I mean what financial order do you want the court to make in the end?

Customer: replied 6 months ago.
Clean break,transfer of matrimonial home to me and my wife to pay all my costs
Customer: replied 6 months ago.
is there any way of obtaining her address legally where she is currently situated from her previous solicitor ?
Expert:  Clare replied 6 months ago.

The option that the Judge is likely to go ahead with is not to commit her to prison - that cannot be done unless the Order has been personally served on her.

The way forward is for the Judge to simply make the Order transferring the property into your name (and the costs order) in the absence of your ex.

This is what you should be asking to happen.

I hope that this is of assistance - please ask if you need further details

Customer: replied 6 months ago.
Thank you ,there is one further obstacle ,my wife has given birth to another child in the last 3 years and i am of the opinion she could be my child biologically ,i also want the status of the child to be shown.what of this issue ?
Customer: replied 6 months ago.
I simply cannot walk away with just a divorce and forget that a child exists that could be possibly mine
Expert:  Clare replied 6 months ago.

How certain are you that the child is yours?

Have you applied for contact with the child?

Expert:  Clare replied 6 months ago.

In fact I note that I have given you this information before

You are entitled to apply to the Court for a Child Arrangement Order.

This is done using a Form C100 and paying the fee of £215

Within that application there will be an Order for a DNA test.

You clearly know how to use the DWP to achieve service and the matter will be moved to a Court close to her.

You will of course have to pay for the DNA test I am afraid.

Please ask if you need further details

Clare, Solicitor
Category: Law
Satisfied Customers: 33814
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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