Applying as respondent

[AnnetteCurtainPeeper]

Hello,

I have posted about this previously on legal, but some more things have come to light since and thought I'd try here.

Ex and I were married in July 2010 and separated January 2013. We have a son together. Ex is emotionally abusive.

He applied for a divorce in early 2015 on a 2 year separation basis. Because I am stupid I didn't check he got the absolute and so i didn't realise until my fiancé proposed this year that I am still married.

A long story short, ex finally signed the paperwork needed and a Nisi was pronounced in July. I was given the advice to obtain a consent order. My family are wealthy and he is unemployed. He is refusing to sign this.

He is now refusing to apply for an absolute as he does not want to negate any claim he can make against me in the future.

We have a court order in regards to my son, they see each other regularly (eow and one day a week).

I am desperate to be divorced, and my solicitor has advised that I apply for an absolute as the respondent. This means there will have to be a hearing and I will have to pay for the application to the court. From doing some googling this evening my concerns are that a judge will not sign this off as we do not have a consent order. I will talk to him about this on

Has anyone else ever been in a similar position? Or have any advise?

Sorry I wasn’t clear. If your ex pursues you for any money, it may be that he has to pay his legal fees to the legal aid agency if he gets legal aid for financial proceedings or even just his costs in relation to the children act matter (what they call the statutory charge) because it would be legal proceedings involving the same relationship (at least the legal aid agency would be interested if he recovered any money)

Therefore if you took financial proceedings in court, the judge would definitely be interested in this when making their decision as to how much either of you were to give the other. For example, there would be no point ordering you pay him a lump sum of, say, £20k as the majority of this would be taken up by the statutory charge (and your husband would only be able to keep a small proportion)

Therefore pointing this out might help sway him (especially if you tell him you will pursue costs if he doesn’t agree to a clean break, in light of the fact that he won’t actually recover anything substantial and it will be a massive waste of everyone’s time and money in dragging this through the courts)

Or you might consider offering him a really small amount to make him “go away” on the basis that he won’t recover anything else anyway cos of the statutory charge. I understand this might not be the most attractive option for you

@Crazycatlady83

Many thanks for explaining, I see what you mean.

Do I need to retract my current offer of - 'I won't pursue the cms if you sign the clean break' as it can't be upheld? I could then offer £500 , and explain what you have explained to me.

Would that then be a clean break or a consent order?

Sorry solicitor hard to get hold of, I know I should be putting my questions to him, also to be honest I'm not sure I want to rely on his advice totally

The more I think about it, the more willing I am to pay him a lump sum to get this sorted and draw a line in the sand, regardless of how unfair that feels.

I wouldn’t bother retracting your offer. See what he says - just remember it won’t be able to be written down as won’t be accepted by a judge. Indeed if he does agree, there will be nothing to stop you applying for child support down the line anyway

Have a back up plan and if you make a lump sum offer, set out exactly why you are doing so. Mention you don’t think any judge would consider the post separation assets in this case (you have both accumulated assets - it isn’t your fault he has spent his inheritance) and definitely set out the statutory charge. If he agrees, do not give him a penny until he has applied for decree absolute and the judge has approved the consent order. You need to keep him motivated

A clean break is when all financial aspects are severed between you both

A consent order is the document that incorporates your agreement and goes before the judge. It will basically say, these parties have reached a clean break agreement. In more legal terms than this!!

@Crazycatlady83. I have spoken to my solicitor, my ex has not got in contact and today was the deadline. I have decided that I am going to contact the CMS and start an assessment. I will see what his reaction is to this, and then go from there. I think the next stage will be offering £500 to sign both the clean break and the absolute. If he still refuses then I will start the financial remedy proceedings as litigant in person, and also make an application for the absolute.

Does this plan of action sound reasonable to you?

I find my solicitor really unhelpful.

I think that sounds a good option.

Please make sure when you put forward the new offer to mention every reason why he should accept it - assets on separation were low, you took on debt, he hasn’t provided you with any child support since separation, post separation assets will not be included in any divorce calculation, his inheritance, statutory charge, costs if he does not agree etc.,

Your offer letter should really detailed and try to be persuasive - your lawyer should put time / effort into it (not just have £500 to piss off, sort of thing!)

Good luck, I hope that it works for you. If not, follow through, make the application for a financial order. If he gets a lawyer on legal aid, you are in a great position because of the statutory charge - use every single opportunity to remind him / his lawyers that he won’t get a lot because of it.

Notwithstanding this, I don’t think he will get legal aid because the lawyer will have to do a costs/ benefit analysis to the legal aid agency. I.e they have to prove that the costs they spend out will be less than the sum your ex will receive.

Good luck!

Thankyou so much for you help @Crazycatlady83, much appreciated. Now to spend hours on hold to CMS!

@Crazycatlady83 sorry to message again - I have just had a thought that I could possibly suggest mediation. I don't want to pay my solicitor £150 plus vat to send another email my ex with ignore. Is it odd to kind of go 'backwards' in this way?

You could try mediation (and depending on your income, you might get a reduced rate)

Have you thought about putting your proposal to your estranged husband yourself? If he is going to ignore you anyway, you haven’t got anything to lose!

It definitely shouldn’t be costing £150 + vat to send a letter - ask for a itemised bill as that’s madness!

@Crazycatlady83 I have actually - I've been writing an email in my head all afternoon. The initial CMS letter will take about a week to get to him, which feels a torturous amount of time to wait to see what he will do. I just know that he is waiting for a lump sum offer, I'm just not sure when to time it. He's got nothing to lose - he's a single guy with no interest in ever getting married again. I don't want to write a letter saying I won't chase him for cms AND give him money.

One thing I have learned for sure is that my solicitor is extremely expensive.

*He's got nothing to lose so will drag this out as long as possible knowing it's bothering me

But you don’t need to give up your CMS. Even if you agreed to this, signed it in blood, had it witnessed by the queen (I don’t mean to be snippy or sharp - this is my attempt at humour !) you can still go to the CMS and ask them to do a calculation. It’s because the Child Support Act 1991 specifically says that you cannot give away your right to child support upon divorce. It’s because it’s for your child, not for you.

If you write the letter yourself, you need to find something to motivate him! For example, state that you will pursue costs if he refuses to negotiate.

I’m sorry to hear your lawyer is expensive and you aren’t entirely happy with the service. Have you thought about approaching a solicitor who would put the offer to your ex and draft the consent order for a fixed fee (there are some lawyers in my area that do this for around £750 plus VAT)

Of course you could go to mediation, they would then arrange disclosure of financial documents and attempt to reach a settlement. A solicitor could then incorporate this into a consent order for you.

You know your future financial circumstances the best. It is a risk not to get a financial settlement (especially if you are the higher earner or intend to remarry but he won’t) but without getting an agreement, successful mediation or going to court - you will be left with this as the only option.

i was the respondent but made the offer, which went back and fore in negotion....but only at £25+ vat email solicitor rates....(your costs are v steep....my final bill was more like £20Kish on kids, and partly finance)

he messed me about for months and i gave him an ultimatum, take the offer or see you in court as the final hearing date was already set....he took the offer and my solicitor drew up the consent and it was done (phew i did not want to go to court again...!!)

the consent arrived, and a week later my divorce was finalised. hallebloodyluliah.

i understand your reluctance absolutely.....go via mediation if you have to, but dont just do nothing x

thank you again everyone.

So last thing this afternoon my solicitor has had a bizarre response from STBXH.

He has asked me to disclose my finances and offer him a settlement that will put us 'on equal footing', whatever that means. Apparently I am using the CMS as a threat and am being 'disrespectful' in my negotiations. He really does think that I have bundles of cash lying around. We have been separated 8 years and I had literally nothing when he left, it makes no sense. The £500 I was going to offer him is my emergency savings money and It is all I have. I can't even afford to pay my solicitor to respond, so I will be responding directly. I absolutely cannot ask my family for more money.

A big part of me wants to ignore his awful response and go ahead and apply for the absolute and financial remedy order, but I am very nervous about the judge chucking it out as there is no financial order.

@justanotherkid I am glad to hear it worked out well for you, there is hope after all!

Is he proposing just you give him disclosure? It’s joint exchange of disclosure in financial proceedings (so you swap each other’s)

When you file a consent order there is a short form for statement of information in relation to finances which you have to file with the consent order which you could suggest you swap before any deal is made.

Sounds like he thinks you should be sharing some of the joint property you have with your new partner. That would be a “post separation asset”. I would suggest to him, you should be sharing some of his inheritance if that’s the case (just because he has spent it all, does not mean you cannot and should not raise that as an issue and a reason to “even out” your finances)

@Crazycatlady83 yes - he thinks I should give him my financial records and then he can make a decision as to how much to ask to make things 'fair' between us. I am pretty sure that £500 will not make him happy, as he obviously thinks I'm sitting on a load of money, so I will be sending a response detailing my financial struggles and telling him my hands are tied. When my father died he had no will in place so everything went to my mum. We simply break even every month, I have two children, no savings lying around, and i just cannot go to my family for more money, my mum has already bailed me out of enough situations because of this man.

Hopefully this will appeal to his better nature. If not then it looks like I'll be applying to court and representing myself (something I will let him know is on the cards should he decide not to sign the paperwork). I am not so worried that the courts will look at my finances and award him a load of money ( namely because there isn't any spare cash lying around), it's more the effort and time.

Sorry I've realised I keep repeating myself 🤦🏻‍♀️ My head is in a bit of a spin.

This truly makes me sick on your behalf .
Try and cut down on the correspondence with your lawyers .

Is there any equity in the house you bought with your fiancée? He could have his eye on that