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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10287
Experience:  30 years as a practising solicitor.
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My lawyer raised a Warranted writ in Court and the Options

Resolved Question:

My lawyer raised a Warranted writ in Court and the Options hearing was last week.

It has now been Continued for 4 weeks. What exactly will happen at the Continued Hearing?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

One of three things could happen:

1. If the case is complex, either or both parties can ask of the case to be remitted to Additional Procedure for further preparation of the pleadings.

2. A legal debate could be assigned if there is an argument about what the law is or criticism of the way that one or both parties have presented their case in law.

3. If facts are in dispute a proof hearing could be assigned to hear the evidence before the court rules on the issues.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

thanks


I thought it would have gone to proof instead of a continued hearing. unfortunately, I cannot contact my solicitor.


surely it would have been asked for at the options hearing?

Expert:  JGM replied 2 years ago.
The court will normally allow a continuation if the lawyers need more time to deal with the written pleadings or for any other reason that the court thinks is reasonable. If you can't get in touch with your lawyer ask to speak to someone more senior in the firm and express your concern. The lawyer should keep you informed of progress throughout the action.
Customer: replied 2 years ago.

i have disclosed all my pension values to her solicitor and they are not communicating with my own solicitor. there is also equity in the house.


i am also trying to have the house sale ordered by the court as i am still tied to the mortgage and cannot buy accommodation for myself whilst i am still on the mortgage


is this something which could be settled at the continued hearing by the sheriff?


there are no complex assets in this, it is dragging on due to the other lawyer and her client burying their heads in the sand


 

Expert:  JGM replied 2 years ago.
No, this won't be adjudicated at the continued options hearing unless the parties themselves have reached a settlement. A proof would be required, particularly if there is a dispute over the sale of the house.
Customer: replied 2 years ago.

so you are effectively saying that the whole thing could go on indefinitely and that my taking it to court has no effect on speeding things up?


 


I made an offer / proposal offering a % of the equity in the house and a share of my pension policies. will the sheriff take this into consideration and eventually force this offer through the court if it went to proof?

Expert:  JGM replied 2 years ago.
It is the sheriff's job to decide what is a fair share of matrimonial property if the parties can't reach agreement.

Any offer you have made which is seen to be reasonable will be taken account of by the court when it decides any liability for expenses.
Customer: replied 2 years ago.

but this will happen at the proof rather than at the continued options hearing?

Expert:  JGM replied 2 years ago.
Yes, an options hearing is only a hearing to consider option for further procedure.
Customer: replied 2 years ago.

so after being told the only way to move things on quicker was to take it to court, it is now likely to take months to sort?

Expert:  JGM replied 2 years ago.
Taking it to court at least means that the party has to follow the court timetable or face sanctions. Not taking it court means they don't have to do anything. If that was the case, your lawyer has made the right decision to take it to court.
Customer: replied 2 years ago.

ok, thanks


 


the problem I have is that if it now goes to proof, it would have been better going to proof at the options hearing rather than at the continuation as we have effectively lost 4 weeks.


if it does go to proof, am I correct in assuming that everything will be sorted out at that hearing, including my divorce?

Expert:  JGM replied 2 years ago.
Ask your lawyer why the continuation was necessarily if it's making you concerned.

At the proof the sheriff would hear evidence and issue a written judgement, usually within two or three months. The divorce will be granted as part of that judgement. However 99% of cases settle outwith the courtroom! typically shortly before the proof, everyone's minds are fully focused and the pressure is on.
Customer: replied 2 years ago.

I am concerned because there are no children and very little assets. I am in a new relationship and we just want to get on with our lives


My estranged wife thinks I should hand over the house in its entirety to her and walk away!


so what you are effectively saying is that if it goes to proof in 6 months, it could be 9 months from now before my divorce is through?


I will have been separated for 2 years in 6 months time, can I apply for my divorce then separately?

Expert:  JGM replied 2 years ago.
Yes, it could take that length of time and no you can't raise separate divorce proceeding where there is already a divorce and where financial matters haven't been sorted out.

I suggest that mediation may be an option if both parties agree. A third independent solicitor would try to arbitrate between you and your wife via your solicitors at a joint meeting where you would both be present but could be in separate rooms. That would get it done in a day and cost no more than about £2500 in total which is minimal compared to a divorce proof which will cost up to five times as much.

Mediation is not binding but any agreement would then be put in writing and would become contractually binding.

Talk to your lawyer about this as an option. If you can get hold of your lawyer, change lawyer.
Customer: replied 2 years ago.

ok thanks


as the fact is that I have put proposals in place which have been ignored completely and not even counter proposed, am I in a position to claim for court costs from my wife, given the fact that it is her refusal to communicate which is delaying a conclusion to things?

Expert:  JGM replied 2 years ago.
Yes, I mentioned that above.
Customer: replied 2 years ago.

thanks

the continued hearing is in 3 weeks so adjustments need to be in place next week

is there still scope after this to lodge a joint minute if one can be agreed prior to the hearing date or does everything have to be in before the 2 week deadline?

Expert:  JGM replied 2 years ago.
A Joint Minute can be lodged at any time.
Customer: replied 2 years ago.

my lawyer is of the opinion that I should be letting her do job and putting my life on hold until everything is sorted in the court


 


she has however, stated that she doesn't believe that the case will go to proof but if there are no agreements on the table, surely it will do?

Expert:  JGM replied 2 years ago.
Yes it will. Lawyers can make thousands from the pre proof correspondence and procedures in court. That's why I am advising you to discuss mediation with her and get it all done in an day.
Customer: replied 2 years ago.

that's easier said than done!


 


every time I push my lawyer for answers (I am not familiar with legal matters and court hearings), they start threatening to stop representing me. hence my comment about letting her doing her job!


 


and to change lawyers at this late stage isn't really a option for me as the existing one will want full payment before releasing my file and then everything will be delayed again as I look for an alternative lawyer


 


if it does go to proof, will my wife will have to stand up in court and have all her finances disclosed and will all the witnesses be in attendance in court together or do they go in individually?

Expert:  JGM replied 2 years ago.
Both parties have to produce a full financial disclosure. If they don't the court can grant an order for a commissioner to be appointed to get the information.

At the proof the witnesses are called separately and aren't allowed to be in the court until it's their turn to give evidence.
Customer: replied 2 years ago.

full financial disclosure has been issued to both sets of lawyers so there is nothing being hidden regarding that side of things.


 


with regards XXXXX XXXXX going to a proof hearing, am I right in saying that I will not have to be in court whilst my wife gives evidence and vice versa and that I would not be witness to any witness statements in court either?


 

Expert:  JGM replied 2 years ago.
You and your wife would normally be present in court throughout the proceedings sitting beside your lawyers but if you don't want to be present you don't have to be. It's not a course I would advise as the lawyer will need your instructions from time to time.
Customer: replied 2 years ago.

thanks


but this would only happen at the proof and not at the continued options hearing, is this correct?


so I would witness all of the witness statements which were called to court?

Expert:  JGM replied 2 years ago.
Yes.

Customer: replied 2 years ago.

what kind of witnesses would normally be called to court?


 


I take it that if my wife refuses to discuss anything with her lawyer and refuses to consider any proposal, that this would be considered at the continued hearing?


 


 

Expert:  JGM replied 2 years ago.
The parties conduct can be considered by the sheriff at the conclusion of the case in the contact of liability for expenses. It can also be considered at procedural hearings if there has been prejudice to the progress of the case.

The witnesses will depend on what you are trying to prove. Much of the evidence will be the parties and it is to be assumed that valuations of matrimonial property will be agreed.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10287
Experience: 30 years as a practising solicitor.
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