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Ancillary boxes not ticked on petition

  • fatfreddie
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11 Sep 12 #355303 by fatfreddie
Topic started by fatfreddie
My STBX has initiated divorce proceedings against me based on two years separation. However, she hasn''t ticked any of the Ancillary Relief boxes on the divorce petition.

Now that the Decree Nisi has been granted I have applied to the court for financial matters to be resolved by the court and have received Directions from the court, I am now preparing form E as directed.

Without getting too deep into matters (they''re complicated) I''ve got a technical question to ask.

My position is that I want a property adjustment order (ie a chargeback) to enable me to keep the house, my STBX wants the house to be sold.

My understanding is that as things stand that I have the right to apply for such an order, but my STBX doesn''t.

However, once I actually apply for such an order is it within the court''s remit to grant a sale of the house even though technically my STBX doesn''t have the right for such an order?

  • SilverFir
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11 Sep 12 #355310 by SilverFir
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All you''ve effectively done so far is stated that the property needs to be considered as part of financial proceedings, you haven''t specified what you want to happen to it.

As part of the court proceedings, you''ll be able to say what you want to happen (a chargeback) but your Ex will also have a chance to say what s/he wants to happen (sale). If you can''t reach agreement then the court will probably decide for you.

[disclaimer - I''m just someone undergoing a similar process, I''m not an expert!]

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11 Sep 12 #355311 by fatfreddie
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All you''ve effectively done so far is stated that the property needs to be considered as part of financial proceedings, you haven''t specified what you want to happen to it.


Yes, I know that I haven''t specified so far that I want a chargeback, but when I do, what is the state of play considering that my STBX hasn''t technically got the right to apply for any orders?

As part of the court proceedings, you''ll be able to say what you want to happen (a chargeback) but your Ex will also have a chance to say what s/he wants to happen (sale). If you can''t reach agreement then the court will probably decide for you.


Let''s consider another scenario. If I don''t apply for a property adjustment order my understanding is that she wouldn''t be able to apply for an order to sell the house as she doesn''t have the right to apply for any orders.

Given this, is it feasible for my STBX to ask the court to order a sale in response to me asking the court not to order the sale of the house?

Or is the reality of the situation that it doesn''t really matter who ticks which boxes, as long as at least one party does apply to the court for financial orders?

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12 Sep 12 #355501 by SilverFir
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Actually I cannot answer this - and I''m going to bump it because I think I may have a similar issue.

On my Form A I''ve requested a Property Adjustment Order only (I want sale of the house & division of equity but nothing more). I suspect my Ex will want a Lump Sum Order, he thinks I owe him some money. Can he ask for this, given that I didn''t tick it on Form A?

  • jonathancj
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12 Sep 12 #355503 by jonathancj
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She''s only prevented from applying if she has obtained Decree Absolute AND got remarried as well. If she hasn''t remarried then she could file her own application. Because you''ve applied, she doesn''t need to bother, though.

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12 Sep 12 #355508 by SilverFir
Reply from SilverFir
So to repeat the OP''s question:

Or is the reality of the situation that it doesn''t really matter who ticks which boxes, as long as at least one party does apply to the court for financial orders?

  • .Charles
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13 Sep 12 #355616 by .Charles
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No it doesn''t matter. Once proceedings are issued, both parties are ''party'' to the proceedings.

The right to apply lapses due to the remarriage trap where there is no existing application at the point of remarriage. The Petitioner would usually make a claim in the Petition which remains dormant until this is activated - which can be after remarriage. The respondent has no such right but, again, can make his/her own application if they have not remarried.

The key issue here is that the order that the respondent seeks - a charge-back - assumes that the court will enforce a charge-back upon the petitioner who wants a sale. This seems unlikely.

If the respondent wants to retain the house he should offer to buy out the petitioner not seek to saddle her with the property. Can a court force a person to remain in a property and, presumably, maintain it? What do *you* think?

Charles

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