Fees

Hi
Will anyone be able to advise on fees, as I am quite confused.
My partner is the respondent and is being divorced on the grounds of unreasonable behaviour. (accepted this when was down and wanted the divorce over). They have a Nisi, but no Absolute, as they still haven''t agreed on financial side of things. She is dragging her feet and refusing to agree to a more than fair offer that is 70/30 in her favour, but wont accept because she doesnt want to move out of the family home ever, although he has agreed she can stay until the endowment is due to be paid in 5 years time, and they sell and split proceeds then. Very soon it will be 5 years that they have been separated.
My question is, can he cross Petition at this stage on the grounds of 5 years separation. Im just thinking if he goes to court that I have read that she will not be able to claim any fees from him? Is this correct?

There''s no point in cross-petitioning and incurring further delay and costs. A Respondent can apply for the Absolute 3 months after the first date the Petitioner was entitled to apply for it.

However the courts may postpone the absolute until the finances are settled if your partner''s wife would be financially disadvantaged by no longer being married. For example pension death benefits would be lost so if your partner has a large pension fund and died before the finances are settled his wife would be disadvantaged as she wouldn''t have a widow''s entitlement to the death benefit. Alternatively she would be disadvantaged if the deeds of the former matrimonial home are held in your partner''s name and she loses her matrimonial home rights and the property was sold before there is a financial settlement.

There is a general court rule that the unsuccessful party to an action pays the costs of the successful party. That means unless it is agree differently the Respondent to an unreasonable behaviour or adultery Petition usually pays the cost of the Petitioner for the actual divorce. Also costs apply when the Respondent applies unsuccessfully for the absolute.

What your partner (or a solicitor on his behalf) could do to help focus minds is apply to court to start financial proceedings. The general court rule that the unsuccessful party pays costs isn''t applied to financial cases so each party pays their own costs, although if someone doesn''t abide to the court rules and regulations during proceedings and causes unnecessary hearings the courts can make a costs order.

Hope that helps.

That kind of helps! The Nisi was granted aug 2011, will it still stand or will they have to start the process again.
She has a £13K private pension, which he has said she can keep, an endowment she cashed in worth £12K, which she can keep, and he has £8K commercial property which he will keep.He only has state pesion(self employed).
He has proposed that above and then a 50/50 spilt in five years time when the endowment mortgage will need to be paid off, at this time the youngest child will be 13, and the other 3 will be over 18.
He has the children overnight more than she does.
I have just found the nisi dated aug 2011, which says "ordered that the Respondent (my partner)pay the costs incurred on behalf of the Petitioner (she gets legal aid) in this cause to be assessed by not agreed". What does that even mean?

The Nisi stands unless it''s dismissed by the courts. If the Absolute isn''t applied for in that timescale of one year after the nisi it can still be applied for after the year but the court requires send additional information verifying there has been no reconciliation or children born.

On what basis has your partner proposed a 50:50 split and how is the wife to be housed in 5 years time? IT''s a common misconception that matrimonial property is shared mathematically 50:50 on divorce. Sharing 50:50 only applies when there are enough assets to meet the "needs" of both spouses (in particular for housing) and there was no exceptional contribution by one party. Otherwise assets are shared according to checklist of factors in s25 Matrimonial Causes Act 1973 with the aim of equality to leave both parties on similar footing and lifestyle to start independent lives.

"ordered that the Respondent (my partner)pay the costs incurred on behalf of the Petitioner (she gets legal aid) in this cause to be assessed by not agreed".

Costs can be itemised and agreed or assessed. With legal aid the bill is assessed and when the costs are challenged there''s a detailed assessment hearing.

Hi, there is not enough equity right now (around £40K) to rehouse them both. She moved out of the fmm and was renting for 4 1/2 years until the middle of the year when she moved back onto the fmm where she lives now. (may partner and I have rented a house together, with his son and my three kids). His other 2 kids share there time between 2 houses. In 5 years time the £35K enownemnt part of the mortgage needs to be paid back to the bank as they will not be able to pay the money back, and there will still not be enough equity for them both to buy somewhere. That is where the 50/50 split then comes in, as she has already had £25K and him £8K. he has a cj from loans that he couldnt afford to pay when work dried up, and that has 5 years left so cant get a mortgage at this moment in time. she works part time and he is self employed with a low turnover.