My X2B's solicitor recieved knowingly all of the funds from our joint account when the X2B emptied it. My questions are: a) I thought that the general advice was to preserve joint funds? and b) the solicitor in question knew where the funds came from and reputedly told the x2b to be 'careful' in what she had done as she was using the joint funds to try and get a non mol against me at the time. Do I have any case against this solicitor?
Although morally the actions of the solicitor in accepting these funds may seem wrong, I suspect that technically and legally they are in the clear.
Again technically (certainly as far as the bank was concerned) you X2B was within her rights to withdraw the money from the joint account.
Your remaining hope is that this action will be viewed negatively by the court and taken into account in any financial order that is made in order to 'balance things up'. However, and here I am speaking from experience, the court is primarily concerned with hard facts about income levels and outgoings and housing kids. It is very unlikely to shape the order to penalise your X2B for this action.
In short - I think there is little or nothing you can do with this one.
What is the difference in you withdrawing modest money to pay your solicitors costs.
Clearly it depends on the sum but I agree the solr is in the clear. If though the parties had a joint savings account with say £8000 in it and W withdrew the lot you could employ a tactic of pointing out to the Court the action was in breech of the "overriding objective" which underpins Court Proceedings.
The overriding objective
These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
Dealing with a case justly includes, so far as is practicable –
ensuring that the parties are on an equal footing;
dealing with the case in ways which are proportionate –
to the amount of money involved;
to the importance of the case;
to the complexity of the issues; and
to the financial position of each party;
ensuring that it is dealt with expeditiously and fairly; and
allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Application by the court of the overriding objective
The court must seek to give effect to the overriding objective when it –
exercises any power given to it by the Rules; or
interprets any rule subject to rule 76.2.
Duty of the parties
The parties are required to help the court to further the overriding objective.
Court’s duty to manage cases
The court must further the overriding objective by actively managing cases.
Active case management includes –
encouraging the parties to co-operate with each other in the conduct of the proceedings;
identifying the issues at an early stage;
deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
deciding the order in which issues are to be resolved;
encouraging the parties to use an alternative dispute resolution (GL) procedure if the court considers that appropriate and facilitating the use of such procedure;
helping the parties to settle the whole or part of the case;
fixing timetables or otherwise controlling the progress of the case;
considering whether the likely benefits of taking a particular step justify the cost of taking it;
dealing with as many aspects of the case as it can on the same occasion;
dealing with the case without the parties needing to attend at court;
making use of technology; and
giving directions to ensure that the trial of a case proceeds quickly and efficiently.
So in your case if it is difficult for you to get legal advice because of her actions she and her solicitor may have breeched the overriding objective and the DJ may say to W solicitor put £x back in the joint account to enable H to get legal advice. This is done by either an application under s 37 Matrimonial Causes Act 1973 for an avoidance of disposition order where the DJ is asked to set aside a transaction which is calculated to defeat in part a parties claims etc-that in this case may be diff to sustain but if the £ taken out is large maybe.
If W has drawn out enough for the application say £1000 definitely tougher to argue.
If she claimed costs of the divorce against you pay the liability from the Joint account:)
That should give you some ammo!!
Non molestation is akin to "pestering" -did you get a warning letter before the application? If not and it is not serious allegations W is unlikely to get costs. Legal aid would not be granted unless warning letters have been sent unless v serious or unless C involved.
Its no big deal as you could give an undertaking (promise) to the Court onthe basis you don't admit the allegations ("without admission of the facts") and the qid pro quo for that is no order for costs.
Remember though once given an undertaking can be enforced and a serious breech can involve imprisonment.
The law has recently changed and breeches are criminal offences and the CPS prosecute in the Magistrates Court so a breech could give a perpetrator a criminal record.
In a case where the app is weak remember the order is discretionary not automatic although it is not too difficult to get if someone is applying pressure, harassing, or sending innapropriate texts etc
Occasionally where both parties have behave innapropriately the Respondent may say OK I will give an undertaking if you do and cross ndertakings are given.
In a more serious case where violence involved and significant harm is caused the DJ should not accept an undertaking as if significant harm is proved a power of arrest must be added.