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Obstruction - what's the critieria?

  • WornOut
  • WornOut's Avatar Posted by
  • Senior Member
  • Senior Member
11 Feb 08 #13466 by WornOut
Topic started by WornOut
I applied for Ancillary Relief in mid December having been separated from the ex-husband for 4 years, having crawled through the divorce process at a snail's pace for almost two years and having encountered obstruction every inch of the way - paying very dearly for the additional work that needed to be done.

Prior to the application being made the ex had a further two opportunites to respond to my offer of 50% of all assets and met these with silence so, in due course, I was given the 17th March for the first appointment.

I spent almost a week working through form E, anticipating the information my solicitor would ask - information she was given two years ago, but is now out of date, only to get an email from her telling me that the ex had decided to accept my proposal. Yippeee I thought, it's finally going to be over!!!!!!!!

My solicitor set about preparing a Consent Order, I signed what needed to be signed and posted it off to her. Five days later she forwarded me a copy of the Order for my records and told me that she had just received a letter from the ex stating that he now withdraws all acceptances and that basically, he will 'see me in court' - so we're back to completing Form e again!!!!

I have paid all my own legal fees for the past two years, whilst living between the UK and Australia. I have no income, because my visa prohibits paid employment and I'm considered to be cohabiting (by the UK not Australia) when I am living with my partner in Australia. The only reason my ex-husband has obstructed the divorce process and is currently obstructing the financial settlement is (1)to remain in the FMH for as long as possible - it is mortgage free and (2) because he is a vindictive so and so and is making me 'pay' for divorcing him.

My solicitor has informed me that the ex's last two letters are in 'open correspondance', which I assume is because they didn't have 'without prejudice' written on them, but I'm wondering what use can be made of one snotty letter saying that he accepts my offer and another stating that he withdraws his acceptance. Does anyone have any thoughts on this?

My solicitor has advised me that despite the ex's obstruction being the reason for the AR application, I cannot recover a penny of my legal costs. However, I'm supposed to take comfort from the fact that, if he obstructs the court from here on, a costs order can be made.

My concern is the criteria the court uses to determine 'obstruction' - he is not stupid, has a very sympathetic doctor and will produce a sicknote to cover any absences from court, or failure to meet deadlines. Illness might be viewed by the court as a reasonable excuse, but it is no consolation to me having paid over one thousand pounds for my airfare and accommodation to attend a failed appointment - not to mention my solicitor's fees. I'd appreciate any thoughts on this issue from other members.

  • DownButNotOut
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12 Feb 08 #13701 by DownButNotOut
Reply from DownButNotOut
From my own experience I would confirm that the courts do not tend to clamp down very well on parties who obstruct or delay proceedings.

There are many valid excuses (illness, lack of disclosure, new solicitor on the case needs time to get up to speed etc) that the courts seem to readily accept as reasons to postpone hearings.

Even when he crosses that line and the courts do decide to take action for his delay/obstruction...that action will very likely just be another court order that he could ignore.

The new principal of each side paying for there own costs seems fairly engrained and I think it would take some serious repeated and gross delay/obstruction before costs were awarded against someone

My ex refused to negotiate at all for 2 years when there is an onus on people to do so. She also got awarded at FH much less than I offered in calderbank letters 18 mths previous.....still the court would not award costs againts her (our case was heard under the old rules so according to the book the should have done so).

I would suggest that you be very selective about which hearings you attend if you are coming from australia.

Have your english sol be at court for you, and you can call in by telephone (needs to be arranged in advance).

This should be fine for first hearing and any directions hearings. Do not attend in person until the FDR or Final Hearing.

  • WornOut
  • WornOut's Avatar Posted by
  • Senior Member
  • Senior Member
13 Feb 08 #13733 by WornOut
Reply from WornOut
Thanks for responding. The situation is exactly as I anticipated!!!

My solicitor will seek excusal for the first hearing, but expects that I might have to attend the next two.

Since writing this post the ex has responded to the Consent Order and wants to settle (where have I heard that before)BUT wants the lowest sale amount that the fmh can be sold for increased. His reason is that buyers are pushing down prices and he doesn't think the property should be sold for less than its 'true value'. The figure he has set is only 2.5K less than the house is being marketed at, so I think he sees the Consent Order as an opportunity to prevent the sale on the basis that a fair price hasn't been offered.

When speaking to my solicitor he took issue with the clause in the CO relating to him paying the house insurance premiums - apparently, he didn't pay ANY premiums last year and he is concerned that should he be unemployed next year, he might not be able to pay them again. NEXT YEAR???????? He clearly expects to be living in the fmh then.

So, my solicitor is back to completing Form e!!!

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