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Penal Notice

  • Destinyhelp
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03 Aug 21 - 03 Aug 21 #517361 by Destinyhelp
Topic started by Destinyhelp
Good morning

Stbx has not provided full disclosure as ordered by the courts despite a Penal Notice attached. He was also ordered to pay thousands of my costs again missed a deadline. He then tried to make an application to the courts pleading poverty requesting for the costs to be deferred to financial settlement and again the judge dismissed his application and ordered he pay my costs for defending his per judge " not well thought through application. He has a separate matter related to submitting fraudulent documents in court pertaining to an overseas company during the proceedings which has been flagged by my solictor as litigation misconduct. Unsurprisingly He has since severed ties with his solicitor .

a month ago he advised my solictor he 'is in the process of instructing a solicitor'. He was given a deadline for him or his new solictor to revert back with the specific disclosures and replies to the lengthy schedule of Deficiencies however we are not getting positive responses. Simply stated as already advised I am in the process of instructing a new solicitor and will not give a timescale.

The deadlines iper penal notice have already been breached by 2 months.

Re: CosRs Order : I have not received a penny for the 2 separate costs orders again deadlines have been breached. My solicitor responded the difficulty with enforcement is he is threatening bankruptcy and deliberately not working as an IT Consultant due to the new IR35 regulations. It may appear he only wants an outside IR35 contract so he can continue to use his LTD company and declare low dividends and low salary or rather not work until conclusion of Financial Settlement he could state living off 'family and friends generosity and loans from friends' Appears he is reluctant to take on inside IR35 contracts for fear of disclosing his PAYE earnings that would be considerable every month.

FDR is in a few months time , please kinfly advise would be the next best course of action in light of the above. This is a man who is simply frustrated and would rather not comply unless push comes to shove, a Penal notice has not compelled him to comply instead he is no longer legally represented. It would not surprise me if his ex solicitor is likely to be providing off the books services as he wrote a legally worded letter responding to the submissions of fraudulent documents and titled it ' Without Prejudice' .

As we have not valued his known assets abroad (company, lands/properties, forex bank accounts) due to lack of adequate disclosures and awaiting further disclosures per penal notice , no doubt the FDR will be ineffective.

Do I proceed with FDR in a few months time, exchange updated disclosures which now shows him penniless as he is not working for reasons outlined above and make my highest offer by drawing inferences on the possible value of assets ahead of FDR? The FDR alone will cost in the region of £5-6K!!!

Or apply for committal by enforcing penal notice? I understand from my solicitor the courts are unlikely to commit as prisons are not full of people breaching orders... but she will take my instructions and act accordingly.

Or go straight to FH? What are my chances of the court approving? Is there anything in the Family Rules that provides for this exception?

I honestly want to proceed with the most effective route. Ultimately I would like a fair settlement. I am primary carer of my young children also working full time. I am the applicant. Spent tens of thousands in legal costs so far.

He wants the FHM sold as he also needs accomodation as stated in earlier submissions..

Please please kindly advise. I am seeing a Therapist to assist with my mental wellbeing. I rarely sleep and have my children to support financially. I receive very minimal child maintenance as it is hardly covers weekly grocery shopping.

Thank you in anticipation.
Last edit: 03 Aug 21 by Destinyhelp.

  • .Charles
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03 Aug 21 #517362 by .Charles
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He failed to comply with directions of the court. A penal notice has been issued and he has failed to comply with that. He has no respect for the court.

However, you would be surprised how people change their tune when their liberty is at stake.

A committal application is not particularly costly, particularly when weighted against an abortive FDR or final hearing.

If the application was successful, he may only get a couple of days in prison but that is usually enough. Even if you make the application and he complies, that would move the matter along.

Charles

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03 Aug 21 #517363 by Destinyhelp
Reply from Destinyhelp
Thanks Charles.

If I am LIP, it's my understanding would need to satisfy to requirements for commital application :

1. Penal Notice was attached to the Order
2. It was in his control and power to do so and yet he disregarded the Order

For the 2nd, do I have to prove this key requirement for each and every document he was ordered to provide e.g. foreign and UK bank accounts statements, foreign title deeds documents, updated foreign share certificates and replies to schedule of Deficiencies?

Concerned may not be able to prove it was in his power and control to provide updated share certificates. Rest is fine I mean bank statements are online and schedule of deficiences he should provide replies to the 80+questions or attempt majority surely. Title deeds he provided ineligible documents.

Does the judge go with balance of probability?

Also, in your respectable opinion, do you think commital is a more effective avenue at this stage than going to FDR in 2 months time and arguing my needs with the children housing and income are X so these have to be met first which means a higher proportion of the known assets should be awarded to me e.g. FHM.

Thanking you for your assistance.

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06 Aug 21 #517379 by Destinyhelp
Reply from Destinyhelp
Hi Charles,
Thank you as always for your advice.
Please let me know if the below is a sensible approach
1. Email my solicitor to let her know of my approach below. I will be a LIP henceforth however will engage her services and my barrister following FDR. However to await for stbx to provide schedule of deficiences and any other disclosures before she informs my stbx that I will be a LIP for FDR. Ideally would prefer he is made aware at the very latest.
2. As I am following up on obtaining my foreign marriage certificate as court rejected my Decree Nisi application, then will have to reapply for decree nisi (13 weeks) no financial orders can be made by the judge anyway even after FDR
3. I will therefore apply for commital myself as LIP basically enforcing the penal notice
4. Exchange updated disclosures, mortgage affordability and property particulars around end of Aug/mid Sep ahead of FDR. I make the Without Prejudice offer at the highest offer basically retain house and 'dont touch my pension' and he keeps whatever assets he has and not disclosed
5. Write my Position Statement. No need to prepare court bundle being LIP
6. Attempt negotiations at FDR but not move on my offer. Is this acceptable due to lack of full and frank disclosure?
Then save my money for FH
7. Await Commital hearing
8 Engage my solicitor and Barrister for Final Hearing.

Please kindly advise.

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07 Oct 21 #517861 by blackmass
Reply from blackmass
In my opinion, you are best to apply for committal, as said earlier its far cheaper than going to FH, hopefully they will get you some disclosure from the ex, in regards to the court bundle, I believe LIP or otherwise the courts will usually ask the applicant to do the bundle.

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