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cost of issuing proceedings but holding them back till later

(10 Posts)
ErnieAndBernie Mon 12-Sep-16 14:07:13

Just a little bit of advice if at all possible. I have had my first lot of free advice from a solicitior. He has advised a good thing to do in my position would be to draft the petition, get it approved and signed, then register it and get it back to their office to be sat upon until such time as it is needed further down the line. We are still in counselling, heading towards mediation and solicitor thinks H might issue proceedings himself if he starts to get nervous. If we were in UK this would not be a problem however we are in another part of Europe and it is possible he could issue proceedings here which would not be so good for me. He said he reckons about 3.5K for ths process. Does this sound about right or should I maybe ask around for a few quotes or advice on similar. I have one other free session booked with a different solicitor but that is not until next week.

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MrsBertBibby Mon 12-Sep-16 14:32:50

This solicitor is iin England?

MrsBertBibby Mon 12-Sep-16 14:40:19

Oops posted too soon.

Are you living in England? Or in the other ?EU? Country?

What would be covered by these 3.5K fees? Does it include finance.

Are your assets here, or overseas?

ErnieAndBernie Mon 12-Sep-16 15:51:28

Ok sorry, we are both British but currently living in Europe due to his work. Assets are primarily UK (house, he has UK pension and 2 years worth of European pension not sure about savings as not yet disclosed ). Solicitor is in UK and proceedings would be through UK system.
He said 3.5k would cover drafting petition, approval, signing, taking it to be registered then taking it back to office to hold on to rather than sending it to h. I think that was it.

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Dogcatred Mon 12-Sep-16 16:43:00

I think your solicitor's point is about seizing jurisdiction - as the UK favours lower earners they usually rush to issue a divorce petition here before the other party rushes in in some countries where you get very very little etc etc. So yes if your lawyer thinks your husband might divorce you abroad where you now live and you would get a lot less money then it would be worth you getting in first over here. Whether £3500 is fine just depends on what will be done and if it is a big case with a lot of assets. You could always draft your own unreasonable behaviour petition and get it issued at the court and keep it unserved and that would not cost you anything. I expect the £3500 may include VAT and court fees too ( but check).

MrsBertBibby Mon 12-Sep-16 18:37:12

£3.5K to issue a petition?!?! The man's a thief! Most normal firms charge fixed fees of anywhere between £500 and £900 plus VAT nd court fees (£550) to get to decree absolute, unless the petition is defended.

Your main problem is habitual residence, if you are habitually resident (specific legal term) in another EU country then the English court can't entertain your petition and the other country will retain jurisdiction. A jurisdiction fight will ramp the costs up.

Go somewhere else, and getbproper advice. Tht one is trying to rob you blind. Shameful.

Dogcatred Wed 14-Sep-16 08:37:55

Hang on the court fee is £550 to issue a divorce petition. That brings us down to £2950 for his fee including VAT,. So something ilke £2400 not including VAT. So yes it may be more expensive than some first but it's not theft and it sounds as though there are complex jurisdictional issues here. £2400 is likely to be about ten hours of time - possibly fewer if a more expensive London firm.

However I certainly agree that if there is no right to issue in the UK then you might be wasting money. Check the jurisdictional point first.

ErnieAndBernie Wed 14-Sep-16 09:49:51

Thanks Dogcatred it makes more sense when you break it down like that. I can definitely serve the papers in UK. And over here you have to have been separated officially for a year before you can do the paperwork, and you have to be able to prove it. We haven't officially separated yet so I doubt he'd try that. We own a house in the UK that was our family home so are domiciled there.
Solicitor also suggests a further 10-20k to sort out the rest (financial etc). Which to me is a lot for something I am hoping we can do reasonably amicably. I appreciate amicable may go out the window when it comes to it but I'm hoping not. I'd like us both to disclose what we have, take our information to our respective solicitors to have a brief discussion of what is a fair split then meet at the table and find a middle ground. Hopefully with a mediator or collaborative lawyers. But I guess you never know.

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MrsBertBibby Wed 14-Sep-16 13:39:09

Domicile is irrelevant if the country you are in is an EU member. You must have been habitually resident in England & Wales for a year before you can issue here (unless you are both habitually resident here).

Did this solicitor even talk about jurisdiction? Because he should have.

And I repeat, quoting that amount to draft a petition (a 30 minute job for a competent lawyer) sending it to the court and then sitting on it it daylight robbery. I say that as a family solicitor.

ErnieAndBernie Wed 14-Sep-16 14:34:15

MrsBertBibby I have just read this thoroughly and we are number 6 and possibly number 7. So to serve UK petition should be ok? I hope!!
We are still going through counselling with (currently) a view that myself and the children return to the UK relatively soon. We both still have bank accounts, a mortgage and close family ties to the UK and the intention was never to settle here permanently.

Brussels II Revised

The issue of jurisdiction is governed by an EU Regulation, usually referred to as Brussels II revised. This regulation applies to all EU states except Denmark. The effect of the regulation is that the English courts will only have jurisdiction to deal with your petition in certain specific circumstances. If the facts of your case do not fit into one of these categories, you will not be able to issue a divorce petition through the English courts. Some of the clauses may seem inflexible or odd but, basically, most of them relate to habitual residence for specific periods of time. The Petitioner is the person who actually starts the divorce proceedings by issuing a petition (i.e. you if you order our service). The Respondent is the person who replies to the petition (i.e. your spouse).

The EU Regulation states that the English courts will only be able to deal with your petition if, and only if, one of the following descriptions applies to your circumstances:

1. Both the Petitioner and the Respondent are habitually resident in England or Wales
2. The Respondent is habitually resident in England or Wales
3. The Petitioner and the Respondent were last habitually resident in England or Wales and one of them continues to reside there
4. The Petitioner is habitually resident in England or Wales and has been so residing for at least one year immediately before the petition is issued
5. The Petitioner is domiciled in England or Wales and has been residing there for at least six months immediately before the petition is issued
6. The Petitioner and the Respondent are both domiciled in England or Wales

Or if (but only if) no court of an EU contracting state has jurisdiction under Brussels II revised;

7. The Petitioner or the Respondent is domiciled in England or Wales on the date when the petition is issued.

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