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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 35275
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 need to talk to a Family law Solicitor specialised in financial dispute.
Submitted: 4 months ago.
Category: Family Law
Customer: replied 3 months ago.
i have gone through divorce as a petitioner and had decree nIsI 2 years ago but just 3 months ago in final court we settled FINANCES through consent order.1 year back ,following aggresive attitude and harassment OF MY EX HUSBAND I COULD GET MALISJUNCTION ORDER TO STOP HIM COME TO THE HOUSE.I DIDNT HAVE SOLICITOR BUT HIS BARISTER MANAGED TO SETTLE THE CASE BASED ON CROSS UNDERTAKING.NOW SINCE THEN MY EX HAS BEEN COUPLE OF TIMES TO THE FAMILY HOME TO COLLECT HIS CLOTHES AND STAFF WITH AGGRSSIVE LANGUAGE .THE CONSENT ORDER HAS NOT BEEN IMPLEMENTED IN PRACTICE YET AND HE HAS NOT COMPLIED WITH THE COURT ORDER TO RELEASE ME FROM THE JOINT BUY TO LET PROPERTY AND PER COURT ORDER IF HE COULDNT DO SO BY 15 MARCH 2018 THEN THE BUY TO LET PROPERTY SHOULD BE PUT IN OPEN MARKET FOR SALE.I HAVE GOT COUPLE OF QUESTIONS:
1- HOW CAN I APPLY TO THE COURT TO EXTEND THE MALISJUNCTION ORDER AS HE HAS ALRAEDY APPLIED TO THE COURT TO LIFT UP THIS ORDER TO COME BACK TO THE FAMILY HOME IN AN EXCUSE TO PUT THE FAMILY HOME TO THE MARKET FOR SALE.
2-HOW CAN I APPLY TO THE COURT TO ENFORCE THE CONSENT ORDER ON SALE OF BUY TO LET PROPERTY WHICH HE HAS RETAINED THE RENTAL INCOME FROM FOR YEARS.
3-IF I WOULD I BE IN THE POSITION TO BUY HIM OUT FROM THE FAMILY HOME IN ORDER TO KEEP IT AGIANST THE COURT ORDER WHICH WAS TO SELL IT ,CAN I INVITE THE COURT TO FACILITATE THIS AND TO VARY THE PREVIOUS ORDER (CONSENT)AGAINST MY EXHUSBANDS WISH WHICH IS TO SELL THE FAMILY HOME?
LOOKING FORWARD TO HEARING FROM YOU SOON.
KIND REGARDSL
Expert:  Clare replied 3 months ago.

My name is Clare

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

Which part of the Uk are you in?

Customer: replied 3 months ago.
In Essex
Customer: replied 3 months ago.
Hello .are u available now?
Expert:  Clare replied 3 months ago.

Are you referring to a Non Molestation Order?

How much is the house worth and how much is outstanding on the mortgage?

How much is he meant to receive from the sale?

Customer: replied 3 months ago.
I had cross underaking for non malisjunction order in February 2017 which was for 6 months.My ex had already moved out from the property even before the order but still was coming attended and non attended when I was not home and helpong himself with whatsoever furniture he wants to take.He was abusive and had self harm attitude to keep my mouthe shout for amything against his wish.I feel scared .if he comes back to the family home I wont be safe as he will be doing the same.He will be exposed to confidential information i have which is in relation to my job amd against the public interest.He has applied to the court and had made application to release and lift up the order.Wjhat would be my position in this case?He uses this as an only way to comply with the consent order to put the family home for sale.
-there is nearly £1050000 valuation with £280,000 outstanding mortgage and £61000 + £44000(CGT liability for him and me ,respectively)
Per his solicitor calculationhe meant to receive £190.000(he hasn't deducted the CGT liability for family home ,if he does then his CGT liability will be £48000)
Customer: replied 3 months ago.
I am at work and not able to talk so please respond to me in writing .
Expert:  Clare replied 3 months ago.

Ok

What does the financial order say about selling the matrimonial home - who does it say should have responsibility for doing it?

Customer: replied 3 months ago.
SORRY.IN MY PAST QUESTIONS I AHVE COPIED THE CONSENT ORDER .CAN YOU ACCESS IT.SO IT TELLS ALL ABOUT THE UNDERTAKINGS AND ORDER.
Customer: replied 3 months ago.
AS I HAVE BEEN LIVING IN FAMILY HOME AND MY EX HAS MOVED OUT TO RENTAL ACCOMODATION INSPITE OF HAVING LIVED IN HIS BUY TO LET PROPERTY for 12 months BEFORE MOVING TO THE RENTAL ACCOMODATION,THEN the order was: per consent and subject to decree absolute the family home should be put for open market sale in the first instance for the £10,50000 or higher per agreed consent or estate agent advice but for the prpose of TRIal the agreed valuation by 3 estate agents was based on £10,50000 and the split 55/45 in favour of my ex.the other undertaking was for my ex to release me from the joint buy to let property's mortgage by 19 March and he couldn't te buy to let property shuld be put for sale.All the rental income been retained by estateagent for the last 12 months ordered to be given to my ex as well as full net proceed of its sale(which wasnt fare and i didt realise this till after i rushed to signed it in final hearing .
Customer: replied 3 months ago.
the estate agent kept contacting me before going back to my feet when i was on sick leave for 8 months(including 2 month after final court)but i didnt agree as i was hoping to come to agreement to buy him out so didnt heard any reply till recently through the court to go to haering for the application he has made to the court to enforce the order on selling the family home while he hasnt released me from the buy to let proper.He has also amde application for decree absolute.plus application to remove the restriction on Non Molestation order.
Expert:  Clare replied 3 months ago.

Just for clarity - can you raise the money to pay him 45% of the equity?

Customer: replied 3 months ago.
If I get a loan such as bridging loan or second charge mortgage on family home then I can raise £180,000 to pay him out as he is entitle to from the proceed of sale after deducting current mortgage and CGT liabilities . But as for me to able to do so I should be removed from the other house mortgage and the family home should be in my sole name for the mortgage providers to approve my affordability
Customer: replied 3 months ago.
For clarification as I explained already he is entitle to 55% of all property pot including buy to let .his business not been considered at all in the pot as he cleverly transferred half of the Company share to his mother .in practice he gets more than 55% as the realistic price for the other property is more than agreed price
Customer: replied 3 months ago.
Good morning .
I was wondering if you are available to advice me please.
Regards
Expert:  Clare replied 3 months ago.

How realistic is it that you can raise this money - do you have the employment to make it likely?

Customer: replied 3 months ago.
i am full time employee but I was on half pay for 3 months .the loan provider know about this and they need at least 3 month pay slip on full employment which I can provide by next month.
Customer: replied 3 months ago.
For the same reason and joint mortgage on family home I can’t take any action without my ex consent and I know he is not going to do so as he intends to buy the house through 3rd party .
Expert:  Clare replied 3 months ago.

If you can prove that - if you are removed from the other mortgage - you can raise enough to pay him the same amount as a sale would give him then the Court is likely to vary the Order to allow for that to happen

So your questions in order:-

1. To extend the non-molestation order you would need to show ongoing harassment. The pressure you are under could be sufficient - but only if you place the house on the market immediately

2.Yes you can apply - but only when the house is on the market

3.You need to be able to show that a buy out by you is possible and file an application to vary the order as a matter of urgency

Please ask if you need further details

Customer: replied 3 months ago.
thank you for replying.
-which form should i fill for any of those questions?would it be a cost for applications?
Many thanks
Expert:  Clare replied 2 months ago.

To apply for a variation of the Order you need a Form A

https://www.justice.gov.uk/downloads/forms/fjr/Form_A_web_0414_3.pdf

The fee is £245

Enforcement is dealt with by way of a D11

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/687993/d11-eng.pdf

The fee is £95

The non molestation order is dealt with here

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688175/fl401-eng.pdf

Customer: replied 2 months ago.
Thank you for that.
My ex has already applied to the court through the same application .one for decree absolute
2 reinforce the court to sell the family home and kick me out of it and also to release himself from non malisjunction order .i just noticed recently he keeps taking photo Rd from the people cars who coming to visit me and getting non registered phone calls either silent or strange voices .is it wise to report this to the police?
-there is hearing on 7May for those applications made by my ex for me to attend .do you advice me to deal with in the same hearing or do I have to make my own application sooner ?does it make difference in the outcome?
Expert:  Clare replied 2 months ago.

You should make your own applications now and ask for them to be heard at the same time

Customer: replied 2 months ago.
sorry i didnt get the answer for other questions.as i mentioned non molestation order was issued on feb 2017 for 6 months.but we both assumed we should have settled within 6 month in the FDR Hearing but it took longer up to DEC 17 to come to agreement on consent order in trial court.
is really that non malestation order still valid ?if it is not i dont understand why he has applied to remove the restriction on non molestation order.if i need to apply should it be based on new application or is there another form for extending that order?
do i need barrister for that hearing or can a solicitor do the necessary work for me.?many thanks
jilla
Expert:  Clare replied 2 months ago.

My apologies

Unless you extended the original Non Molestation Order then it ended in August last year

However your ex may not know this.

I am afraid you will need to apply for a new Order if you believe you need one

A Solicitor can deal with this if you prefer

Customer: replied 2 months ago.
Dear Clare
Hi.i was wondering if you can advice me on my statement.if I apply for enforcing sell of buy to let property do I need to write statement?
Where should I reply to my ex husband statement which he has submitted in support of his application,?in separate statement or the one I want to enforce the court order for buy to let property ?
If decree absolute is issued can I still apply for non molestation order ?
Many thanks
Jilla
Expert:  Clare replied 2 months ago.

Yes you will need to write a brief statement on the D11 form

Your reply to his application should be made separately

You can apply for a non-molestation order at any time

Customer: replied 2 months ago.
Dear Clare
Can u kindly clarify once more that should I fill the form A or the form to v art,extend or discharge an order on existing proceedings in order to apply for transfer of family home to my sole name . Bearing in mind we undertook not to appt for varying order in consent order.i am not sure if this applies or not.
Looking to hear from you ASAP as I have to attend the hearing soon and sent the right firm today.
Kind regards
Customer: replied 2 months ago.
Sorry for misspelling.i mean the Form to vary.extend the existing order
Many thanks
Expert:  Clare replied 2 months ago.

Yes you can still apply to Vary and that is the form to use

Customer: replied 2 months ago.
Do you mean form A or the other form to vary ,discharge or exit from existing order.how can I pay for the applications?
Many thanks
Expert:  Clare replied 2 months ago.

I mean the Form A - I believe the courts take cards these days!

Customer: replied 2 months ago.
My ex has applied for decree absolute and to enforce the sell of family home now. He applied for decree absolute on 28/2/18 and I was as sent the folder for hearing and notice of hearing for 08/05/18 to attend the hearing both for decree absolute and application notice for enforcing sell.he has sent me the 10 pages cost to pay his cost while I applied to decree absolute on 08/04/18 after I received sealed pension sharing annex to send to pension provider .the decree absolute was pronounce 12 days after which I received with one week delay.do still he can claim for the cost ?do I need to be worry? What happens to my home right after decree absolute as my only residential place.
Customer: replied 2 months ago.
Hi Clare
I was wondering if you can reply to my query which is rather urgent as I have hearing and acting as LiP
Many thanks
Expert:  Clare replied 2 months ago.

You should not be worried about the costs of his application for Decree Absolute - he is not able to take it further as it has now been granted!

Customer: replied 2 months ago.
Urgent please
Customer: replied 2 months ago.
I am lip in court now and my ex his solicitor given a note to the court ask for order on sect 9 of senior court act 1981 and sec 38 of act 1984 the senior to sign document on my bahalf on sale and transfer of equity of the other property ,what is my position and argument.do I need to be worried.is urgent please t.i May be called any time
Expert:  Clare replied 2 months ago.

I am sorry - I was in court myself today

What actually happened?

Customer: replied 2 months ago.
Well.there was hearing for 2applications by husband as I mentioned for enforcing sell of family home 2- recover of cost for decree absolute and enforcing the order ,all around £570+£1950 which judge did not listen to me and penalised me for both!
Then there was 2 application by me for enforcing the husband to sell the rental accommodation in default to deadline in March-and asked for recovery of my cost which no cost was agreed .the judge gave the sole conduct of sale of family home to husband and to give the keys to estate agent.he did not agree to issue non molestation order.he was very crossed with me and did not agree to vary the order on sale to transfer it to me even though I am in the position can buy him out.
Customer: replied 2 months ago.
There was an unexpected drafted order by the husband as part of note to the court per hose section 9 and 38 act 1984..to give authority to his solicitor to sign the contract for sale if I don’t sign it.the DJ ordered that I should give the keys to estate agent in a week and if I cause any obstruction should order to vacant the house.
Customer: replied 2 months ago.
What is your views .why should I have been penalised for decree absolute while I had applied for 4 weeks ago and was issued on 18/04/18 before the court and why I was only penalised ,I had made an offer already .i was very disappointed with the DJ.he was rather rude and unfair .i think he just wanted to penalise me as a LIP per guideline against LIP!
Customer: replied 2 months ago.
Unfortunately I couldn’t find a barrister to help me and was very disadvantaged.i asked the husband solicitor to adjourn the hearing for 1 week to have a solicitor with me and he didn’t agree.
Customer: replied 2 months ago.
Can u kindly advice me what is my position.i had a lots to say but the DJ kept cutting me off before I finish .and not accepting my argument
Customer: replied 2 months ago.
Hi Clare
Can u kindly advise me if this was fair ?do I have any option to challenge the current order.did the DJ did fair decision on penalising me only without penalising the other party?was his argument valid about transferring the family home to me because w had already mDe a deal in consent order ?what is my options now.can I appeal it?he particularly said any matter in relation to sale of family hone should be referred to him only.
- can the same solicitor who was dealing with divorce act as a conveyancer solicitor from the same firm?
Many thanks
Jilla
Expert:  Clare replied 2 months ago.

For clarity - did he actually order that you pay the Decree Absolute Costs

can you now buy out your ex at the same amount as he will receive from a sale?

Customer: replied 2 months ago.
he ordered that I should pay for both decree absolute (£570) and for the application he made to enforce the sale of family home for (£1750)’
Yes I may be able to buy home out through second charge or bridging loan.
Customer: replied 2 months ago.
the solicitor for my ex husband provided a copy of an article the same day of the hearing to the court :
Lexis PSL ,family on" jurisdiction about varying capital orders(SR v HR),dated 13/04/18 "which i didnt understand much about it and please advise me wheher it was valid .my feeling is he produced this article so the DJ could not change the order on transfer of equity to me against the previous consent order.am i right?
Customer: replied 2 months ago.
Hi Clare
Can u please answer me? Am I in the position to ask or appeal the court order to be review by another judge apart from the DJ who made the order and specific direction on any matter to be referred to him regarding the sale of the house.
Customer: replied 2 months ago.
Hi Clare are you there?