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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I am in the final stages of my divorce, Nisi was granted in

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I am in the final stages of my divorce, Nisi was granted in 2017 but my wife the respondent would not provide any details to my solicitor to complete the financial part of the divorce, advising me not to apply for absolute until we reached a financial settlement, unfortunately, I ran out of funds and could no longer afford my solicitor.
I was advised to apply to Court for a Financial order and be a Litigant in Person which I did.I was awarded HWF.
My wife refused to attend mediation and all meetings, she had a barrister at the rearranged FDA, after that meeting she dropped her legal representation.
3 judges have placed Court orders against her which she has ignored and to my surprise, there has been no consequences or mention by the judges.
I approached the Court by letter in this regard recently and they have sent me form D11 for me to make a formal application with a Court fee of £155.
My questions are. should I make this application as in the Court order from the latest FDR the order states "If they do not comply with the directions below the judge may draw inferences at the final FDR (April 6th 2021) as to their financial position and the reasons for failure to comply.)
If you say I should submit Form D11 do I have to reapply for Help with Fees again or does my present HWF award cover this application?
JA: What steps have you taken? Have you filed any papers in family court?
Customer: Yes we are at the Final FDR scheduled for April 6th 2021
JA: Have you talked to a lawyer about this yet?
Customer: No I could not afford one so I have been a Litigant in Person
JA: Anything else you want the Lawyer to know before I connect you?
Customer: For the initial question No.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

for background -

how long were you together and married in total?

what are the court orders that she has ignored?

what is she arguing over and why is she being so difficult?

Customer: replied 17 days ago.
we Started our relationship in 2003. We married 2005. Decree nici was granted to me 2017. I have not applied for decree absolute, as I have a hold on the deeds which can be removed on production of decree absolute by my wife. The court orders are regarding the supply to me and the court of bank statements regarding our savings. Her life insurance documents as these were not entered on form E. loan agreements taken out a year after we departed to the value of around £12,000 from amigo loans, the money was paid into her guarantor account but was never paid into her account so I want proof of what happened and what it was for as she is claiming it against me on her liabilities form E. at the FDR meeting a few weeks ago the judge asked us to make an offer of settlement and she offered nothing, zero. The judge had no option but to order a final FDR. Her argument is based on the fact that the mortgage is in her name she had been paying the mortgage for one year £150 per month and therefore I was not entitled to a share of the property. From my previous divorce and the sale of my shares in a seafront hotel I bought £135,000 to the marriage. Over £70,000 of that was spent on the property upgrading it from a rundown council property to a very prestigious flat and gardens. That has been mentioned by her barrister and judges her barrister said it should not make any difference that I had 135,000 at the start of the marriage and the judge said that silly and it won’t work.

I couldn’t figure out for one moment what an HWF award was.

I think you mean help with fees.

You would normally need to make a new application for H with every D11. It’s just a case of regurgitating the application form.

Where the order states “if they do not comply et cetera et cetera” what the judge is saying is that he is going to make an order anyway and he is going to assume that they have got pots of money and it’s going to be unfavourable.

I don’t know what the previous orders are which she has ignored but you can always make an application to court for an unless order. And unless order is an order that unless someone does something by a particular date, then something else will happen.

Yours would be an unless order in respect of committal proceedings. She will have already had a penal notice attached to the original orders of the consequences of non-compliance.

So it would be “an order that unless she does X by DATE then without further notice you can make an application for a committal order”

If she didn’t comply, you make the application for committal and Mr plod calls round (in between tea and biscuits) and she gets carted off to eat porridge for a week.

It doesn’t happen very often but it’s the final sanction which the court has. It certainly focuses the mind

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

I am happy to answer any specific points arising from this.

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

That only applies to new threads, not this one. You have me exclusively on this one.

Thank you.

Best wishes.

FES

F E Smith and other Law Specialists are ready to help you
Customer: replied 17 days ago.
Thank you, ***** ***** you advise me to let the judge form his/her opinion as to and not supplying the documents so far or fill in the form D 11 application. There are several more orders attached to the last FDR meeting, we are to agree a value for the property, if not then I supply five estate agents and she chooses 3 to do a sale valuation. We are to send an open offer to the court a few weeks before the final FDR. Again she will probably ignore.

It depends what you are applying for. I don’t know what the orders are which she has not complied with this.

If it’s with regard to the valuation and anything else, put all that forward to the court as evidence but it wouldn’t normally need a D11 application unless you are actually applying for something which the court has not yet ordered or asked for.

Customer: replied 17 days ago.
Thank you, ***** ***** of all this I do not understand is that if a court order is made against you I thought it was the court that automatically enforced that court order.

Know the court doesn’t automatically enforce anything.

Sometimes it will, of its own volition but normally it will only do it if you make an application.

For example the property has to be valued and put on the market no later than 1 October, say.

There is an order in those terms.

She lives in the house and she refuses to put the property on the market.

You would make an application to court for an unless order that unless it is on the market by the 14th of October you can make a further application without notice, for a committal order.

The committal order is the ultimate enforcement.

But unless you make an application, and if she doesn’t comply with the order by putting the property on the market, then it stays off the market for ever until you make an application. The court doesn’t ask “have you done it yet?”. And then go along enforcing it on its own, you have to push that and the court would just make the appropriate orders.

Customer: replied 17 days ago.
Oh I see, that’s probably why she’s ignoring them someone has told her that. So should I just leave it until the final FDR and then mention that she has not complied with various court orders and hope the judge Sees that as a bad point on her side?

There is no right way or wrong way of dealing with this and sometimes, by pressing people for an answer and enforcing the original order, you can shoot yourself in the foot because she may just come up with a whole load of evidence and paperwork which is unfavourable for you so it might be better to simply let the court draw its own conclusions which are likely to be more favourable (inferences) and let her do herself a disservice.

Customer: replied 17 days ago.
Thank you that was my thinking also. You have been very helpful.
Customer: replied 17 days ago.
One last question if you don’t mind, the court order asks for four or five more orders in the next few months would it be advisable for me to comply with them regardless of what my wife does

You need to appear to be whiter than white.

There is a concept of “clean hands”.

If you want to enforce anything against her, then you have to be squeaky clean and compliant yourself.

Customer: replied 17 days ago.
My thoughts entirely. And I have complied and tried to be respectful throughout.

No problem at all. I am glad to help. Please come back to me at any time if anything needs clarification. Kind regards.

Customer: replied 13 days ago.
The reason I am reluctant to make the application to the court for further orders is because my wife’s job relies on her having a favourable CRB check yearly. I would not want to jeopardise her job with the court see that in a favourable light for me or think I’m Irresponsible.

Whilst your reluctance is admirable, it is unfortunate that she doesn’t seem to share the same sense of fair play.

Therefore she is the one who is making a rod for her own back if she doesn’t do what she is supposed to do. You are not the one who is jeopardising her job, she is.

You should make that point to her.

Customer: replied 13 days ago.
I have to write to her as I am a litigant in person to endeavour to agree a valuation for the property as ordered by the court no later than eight weeks before the final hearing date which is April 6, 2021. Could I put a paragraph in this letter with regard to the possibility of further court action affecting her CBR check. If so could you tell me how to word it so as not to appear confrontational or bullying to the judge

I think I would probably dress it down a little.

Unfortunately, if you don’t do X Y and Z, I will have no option but to make an application to court to enforce the order. If you still don’t comply, I’m sorry to say that the ultimate sanction is an application for a committal order if you consistently and persistently refused to comply.

That would mean that you would end up with a criminal record and I’m sure that you would like to avoid that and to be frank, I would rather not go to the trouble considering all this needs is a few signatures.