Petitioner not sworn affadavit 6 years on

Hi all,

Daft as it may sound, despite being around Wikivorce for over 6 years, I am stil no closer to a conclusion.

Advice please: Dear Former Mrs Mike62 (legally still IS Mrs Mike62) has sat on swearing her affadavit to stop her Petition proceeding to Nisi stage for about 4 or five years.

I think her thinking is that she won''t agree to the divorce until the financial settlement is in her account, which is an interesting notion, because there is a great deal of weeping and gnashing of teeth to be done to agree one as yet.

Ex left 6 years ago as partner in our family hotel business and is still on the bank account, although barred from premises, as she helps herself to anything not screwed down.

In that 6 years has contributed nothing to business, either by work or investment. To keep doors open, I have had to throw money at it through a very slow trading level over the course of the recession, so any settlement is going to take account of the significant monies I have earned through contracting and introduced to the hotel. Its going to be messy.

How would the court view an application by me to set aside the original proceedings and issue new ones based on 5 years separation without consent? I have this irrational fear of the ex trying to milk me for the rest of my life if I leave her to progress the legal dissolution of the marriage in isolation.

She has shacked up with a member of my hotel staff (very awkward!), so her housing needs are met. Two of our 3 kids are now in tertiary education and the third at 14 years old isn''t at all keen on living with the ex and her new squeeze

What does the smart money here think I should do?

Would welcome any informed comment. I am not looking to fleece the ex, but at the same time, I do not believe she should financially benefit from the extreme effort I have made to keep the business afloat in very challenging times, whilst contributing nothing herself.

Mike

Hello Mike, I hope your fit and well.

Tricky one, in short you can apply to dismiss her Petition "for want of prosecution", then send your own, but service is still required, if she won''t sign it''s the deemed service route with a claim for costs of course.

In terms of sorting the dosh, well while things are, shall we say less than buoyant why not do it now?, it''s going to be messy either way, the longer it''s left the more of your hard earned will be poured in, which in a way she stands to benifit from, to what extent it''s hard to say without knowing a pile more, if you ever want to talk it through just shout, I''m sure Nic would be happy to offer some ideas.

Hi Mike, long time! Hope you''re doing well

You know Dukey, I was thinking the same thing when I read Mike''s post. After 6 years Mike, I''m not sure what more there is to lose - I would definitely consider applying for a dismissal and then a Petition on new grounds. As Dukey points out, there is still the service aspect but if you don''t assume she will play ball and be prepared to pay for deemed service, then you need nothing further from her and that''s got to be of real value.

Also, as per Dukey''s advice, sharing assets now (or as soon as) rather than when things really pick up would be a bonus, no?

You''ve worked very hard and against serious odds. Take the initiative Mike - don''t wait for her to suit herself; do what you can to take her out of the equation.

Take care

Shezi xx

Hi Mike,

Good to hear from you, but not good at all that you are still not divorced. I agree with the others - you should get her Petition dismissed and issue your own. You need to get this settled before any more of your cash goes into the business and while values are relatively low so you have a chance of buying her out at a reasonable price.

Good to see that your youngest is living with you - I remember how concerned you used to be that you would never see your kids once they moved out.

Your wedding blog is still the funniest thing I have read on wikivorce, though I doubt anyone else remembers it now.

Best wishes,
Sadie

Mike

Good to hear from you. I can only echo what the others have said ...

You need this sorted so you can get on with your life ..

You cannot have a legally binding settlement without a Nisi ... so she is shooting herself in the foot by waiting to sort it. The other thing is that her position is weakening as the children get older - especially if the youngest chooses to live with you.

There is going to be a question of needs vs contributions here. Sadly though the contributions may not be fully reflected as it is the value of the business that will be relevant .. not how much it has cost to keep it afloat. I dare say though that you could argue there would be no business at all without what you have done to support it ..

You are going to need to disentangle the business relationship ... and for that you will need specialist advice.

Is she working now?

Hadenoughnow

Hello again....
Quick synopsis....
- ETBX left marital home and hotel business in 2007
- Filed for divorce on UB grounds in 2007
- I resisted but responded to petition after a couple of years
- She has not sworn affadavit, so nothing has moved in 17 years.
- All 3 children now grown up and left FT education and home.
- She took up with former employee of the business in around 2009
- They bought a hotel business together in about 2015
- Family hotel business folded after Covid - no longer sustainable
- Only significant marital asset is hotel building.

ETBX agreed to progress matters about 5 years ago, but has done nothing. Can't see that changing anytime soon.

I'm very keen to sell hotel building and move on. The equity remaining in the hotel, less the costs of maintaining it for 17 years mean that her 50% is probably not far short of nothing. Plus there is the messy question of the equity in her part ownership of the hotel where she now lives.

Procedural question - I need to use a D11 form to request the original petition be dismissed for lack of prosecution. Is that the appropriate wording? Then I pay my fee of £184 and submit to the court?
Then start new proceedings on grounds of desertion?

Appreciate any thoughts people may have.

Mike

Hi Mike, long time no see!

I'm sorry that things are not concluded for you after all this time.

Divorce: You will need to apply to dismiss her existing petition. ​The only grounds a Respondent has to dismiss a Petition are want of prosecution. This requires proof of an abuse of due process, and the threshold for this is significant. The leading authority on this is Icebird Ltd v Winegardner [2009] UKPC 24 and sets out that the person applying to dismiss must show that the lack of progress is a result of ‘intentional and contumelious’ amounting to an abuse of the Court. You may have a case to apply for want of prosecution, if you can prove the allegations that the petitioner is doing so deliberately to prevent you moving on. The Court won’t grant this on a whim, so formal statements will be required together with a fact find hearing, most likely last 1 day.
Then, once successful, you can apply for divorce as the applicant. The law changed just over 2 years ago, and all divorces are now no-fault. Respondents no longer have the opportunity to defend an application simply because they want to; so the worst your ex can do is delay matters a bit. If she refuses to respond, then it would be personal service or you providing evidence that she has received the application; then either deemed or dispense with service. The court fee is now £593.