Comments on: Financial Dispute Resolution – look out for these stumbling blocks

By: Marilyn Stowe

Marilyn Stowe — Sat, 05 May 2012 18:35:18 +0000

Dear A and Concerned Brother
Thank you for your comments. In both cases it would be in appropriate to advise without full details.
I can only refer you to the respective lawyers, who are in a position to reply to you both.
More generally I would say that it is not uncommon for one party to try and back out of a deal done at an FDR and usually it is not possible. Your own lawyer can advise. Readers have often been warned by me that unless they are 100% satisfied they shouldn’t settle and later regret it. They should always ask for time to consider an offer in the clear light of day.
As to the costs, the general rule is there will be no order for costs. Readers should note that the court expects to see open offers to understand the parties positions during the proceedings. Without prejudice offers are also still made as additional efforts to try and settle the case. Court ordered requests for disclosure should be promptly complied with and if demonstrated to be oppressive and irrelevant, potentially a costs order might be made against the party who unnecessarily incurred the costs of compliance.
Regards
Marilyn

By: Concerned brother

Concerned brother — Sun, 29 Apr 2012 13:18:38 +0000

Marilyn, I found your FDR article very informative and also the link to “new costs rules” by David Hodson.

I am assisting my sister with her divorce and her FDR hearing was in February 2012. Following the FDR her barrister made a Calderbank offer to her husband (the Petitioner) which I now think is unusual after reading the article by David Hodson.

A final hearing is scheduled for June 2012. To date her husbands side has not responded to the Calderbank offer. Instead they have issued a further questionnaire even thought they have not made any discloures themselves (not even a single piece of paper) despite numerous requests from my sisters solicitors. My sister has made all her disclosures and proofs.

Could the fact that no disclosure has been received from the other side be the reason why a Calderbank offer was made rather than an open offer?

Her husband is playing a very dirty game and in an attempt to discredit her, has been pursuing untrue allegations that my sister is hiding money and earnings and is still involved in a small family business which she left 6 years before she and her husband separated. He hasn’t worked for over 4 years and is using Legal Aid wereas my sister is working hard to support her 3 children (with no financial assistance from her husband at all) and having to pay all her own legal costs.

I don’t think the FDR was of any benefit and my sister is now worried about her escalating legal costs with all the preparations now starting for the final hearing. I just hope that the law treats her fairly at the final hearing.

By: A

Sat, 28 Apr 2012 05:26:01 +0000

Is there an appeal process that can be chosen after the FDR? I have just completed my FDR where I felt under pressure to give in to my ex because she has failed to provide information as to her earnings. I am employed in sales earning circa £45k whilst she is self employed showing £6.5K but drawing a wage on her business and in reality earning circa £30k but not disclosing this to the court or HMRC. She has walked away from all responsibilities of the joint home for 2 years which I have paid. I have made numerous offers which have all been refused and due to the costs and stress involved in trying to reach a resolution, ended up in hospital connected to an ECG. She is living with another partner – difficult to prove -taken a car loan in the meantime which she wanted me to pay and still does not have to pay any monies towards the house whilst it is bein sold. There are no dependants.

By: 'T'

'T' — Sun, 22 Apr 2012 20:09:22 +0000

Thank you Marilyn for your response. I do have a solicitor, but was told that if the law cannot cover the jurisdiction then I am stuck. My ex earns over 70k per annum and I am merely surviving by with a minimum wage, with a yearly income of around £7,000 and depend mostly on benefits, as my earning income is low due to my caring for the children.

He has threatened to go bankrupt, retained the matrimonial home, which was put up for sale, but he took it off the market, and it is assumed that he might be allowed to have the house. He only stays in the country 2-3months in a year.

I have asked about these enforcements in different countries, but not received any concrete answer. Although, I have insisted on my full instructions on the maintenance and other issues be tendered in court, I am uncertain of how it will go.
Another issue if he does not appear on the day or if he does and we did not arrive at an agreement, will the final hearing favour myself or him?
Cheers.

By: Marilyn Stowe

Marilyn Stowe — Fri, 20 Apr 2012 20:57:27 +0000

Dear T
I’m sorry but you have given me insufficient information to advise you. I have no idea what your financial position actually is or that of your ex. However I assume you have a solicitor. Tell him or her what you have told me and make sure you obtain the advice you seek. Put it in writing. If I were you I’d make sure I was completely comfortable and finically protected going into my FDR and also fully aware of how an order can be enforced in the relevant jurisdiction. I agree with you it’s very important and its equally important that you have complete peace of mind.
Best wishes
Marilyn

By: "T"

"T" — Fri, 20 Apr 2012 19:17:01 +0000

Your information on the FdR was very educative. I am going through the same issue right now, I will be attending my FDR next week.
My ex works away and he has done this since 10years that we have been together. We have two kids, had a home, I stayed at home to care for the children, while he worked. He is well paid and has only paid me minimal amounts for months to cater for my two young kids. He has now withdrawn all the savings from the accounts and has not given any reasonable cause for doing that. Now he is threatening not to pay me anything. I have now had to accumulate a massive debt just to care for the kids and pay my blls, whilst he has none. I have been adviced that he would he may keep the matrimonia home because there is not equity on it and pay some spousal maintenance, but no provision of a secured accomodation for the children and myself.
How can that be? My worry is that he works in countries that the British law has no jurisdiction over. I am uncertain that he might for one reason or the other, stop paying for this, wher will htat leave me and the kids then.
What is the best advice you can give me in this matter? I am really worried. Thanks

By: Marilyn Stowe

Marilyn Stowe — Wed, 04 Apr 2012 15:29:17 +0000

David
Why dont you suggest arbitration? An FDR may not produce an outcome, but will incur substantial legal costs.
Regards
Marilyn

By: David

David — Mon, 02 Apr 2012 20:56:57 +0000

I too have been subject to an unscrupulous spouse playing a dirty game. The difference this time is that I am the so called wealthy husband. All through the process I have tried to negotiate a reasonable settlement and have attempted mediation with a qualified lawyer. This resulted in me making an offer where she received half the value of the assets (excluding around £100,000 of money in her name that she claims to be her fathers), half my monthly income and half the cash value of the pensions, but this wasn’t enough for her – she wanted more of the pension. I am 55, she is 48 and she claims that she cannot work more than 10 hours per week, whilst I work 50 or more. There is enough money to go round, but we are certainly not super rich so I see no reason why she cannot contribute more to the household income. We recently sold the family house and she has moved into a new house with no mortgage. On the other hand I have a mortgage on my new property and she refuses to release any capital from the sale of the matrimonial home so that I can repay my mortgage. I offered to meet her in December to discuss the settlement but she cancelled the meeting. Her solicitor confirmed in writing we would meet in January but again this didn’t happen. She has refused to meet in February or March and now has decided to apply for an FDR because I won’t meet her demands for interim maintenance! The one benefit is that she will have to pay her own costs for the FDR which in my opinion is entirely appropriate as she has one of the most expensive law firms in London, whilst I have a fairly modest lawyer who is determined to help keep the costs down. The situation I find myself in is that my spouse is making unacceptably high demands knowing that she has little to lose at an FDR, whilst I am concerned about the mounting legal costs and find myself in the position where after paying substantial interim maintenance and an unnecessary mortgage each month, I do not have enough to pay my own solicitors bills.

By: CJLeeUK

CJLeeUK — Wed, 06 Jul 2011 11:24:07 +0000

The system definitely needs to be looked at and the loop holes closed!

A close friend of mine has just finished going through his fdr.

Basically, his ex has a part time job working 3 days a week. She has made no effort to find another source of income – this was also the case before the split and was a major contributor to the joint debt that they acquired. She stopped paying toward all of the joint debts as soon as he moved out 18 months ago. As a result, he has had to pay out significant amounts to ensure that his (and her) credit could remain reasonable unblemished to allow them both to get mortgages etc. She had a personal loan in her name which she put into debt recovery 10 months ago without telling him – because she couldn’t be bothered to increase her working hours to pay for it!!! But the result is that his credit has been adversely affected, as the mortgage is still in joint names.

All of the joint debts that he has had to pay by himself over the last year and half have not been taken into consideration when the decision was finally made – basically she got 50%!

How is that fair??? Surely he should have had a minimum of 50% + half of what he paid towards the joint debts over the last year and a half? Particularly as she was the respondent!

I am at the start of the whole process myself and I am not at all confident that the system is fair. Based on my friend’s experience and others I have read and heard about, I am tempted to be as unreasonable as I possibly can – that appears to be the way to go.

Too bad my ego won’t let me…

By: Lisa P

Lisa P — Thu, 07 Apr 2011 00:18:16 +0000

Hi Marilyn, I also found your blog after searching ‘FDR’ and I’m so glad I did as I wasn’t aware of the ‘new costs rules’ and I don’t think my sister’s lawyer has ever explained this to her.
My sister fled her home after her husband violently attacked her and has been in hiding ever since.
There are no children and the only significant asset is a house.
My sister has asked for a 50/50 split of assets and debts, and though her husband has agreed (via email), his actions contradict this as he has found every excuse possible for not putting their house on the market.
She is effectively being held to ransom.
When she first sought legal advice, her lawyer advised that they may reach a point where it is not worth continuing with legal action as there may not be enough equity in the house to settle her legal fees.
Jennifer (above) is right when she says ‘There must be so many people who have no choice but to give in’.
I’m so angry and frustrated that a spouse or partner can do what my brother-in-law is doing and my sister just has to take it.
If she does nothing, she gets nothing, but doing something, i.e. proceeding with a FDR, may still yield the same result…Arrrgghh!!
Thanks for the insight.