My partner separated from his wife 10 years ago. They were married in England and lived all of their lives together in England. His wife moved to Scotland approximately 8 years ago.
My partner instructed a solicitor to start divorce proceedings approximately 7 years ago, in England, which she did. However some time later his wife delivered divorce papers using Scottish courts. For some reason the divorce went ahead using Scottish law.
Now up to date. My partner has spent approximately £14K on solicitors fees but they are still not divorced (he is now in debt). The children were over 18 years old and the family home had already been sold before his wife moved to Scotland, proceeds split 50/50. However his wife has a large pension after her high paid job in bank. The value has never been disclosed. His wife is now 56 and can draw the pension.
The issue here is two part. Part one, his solicitor in my mind was going over issues that were not relevant, i.e. how they raised children, issues with each other etc. They only had the pension to divide. This made the whole process more acrimonious and expensive. Why did his solicitor do this, it has been very expensive.
Part two, my partner instructed his solicitor to start the divorce, which she did. However his wife later applied for divorce through Scottish courts and so it it being done under Scottish law. My partner's solicitor kept a Scottish Lawyer consultant while the divorce proceedings were going ahead. As it turns out my partner could be a few hundred thousand pounds out because of pension rules, doing the divorce under Scottish law. He may come out with £30k instead. Difficult to give true figures as his wife has never disclosed the pension value 7 years into the process! Surely it was up to his solicitor to advise him under which law would be more beneficial for him? His solicitor is described as the head partner who can deal with complex cases!
My poor partner feels badly let down and is depressed (long term) with the break up of the family and finding himself in a deep financial mess with nothing to show for it.
Can anyone advise on the way forward, if there is a way forward?
Solicitor’s have a regulator so speak to them but in the meantime speak with another solicitor to make sure if you think he is badly advised. Have they actually divorced under any jurisdiction or is there still an opportunity for him to claim what he believes he is owed?
Thank you for your reply, very much appreciated in a sea of confusion!
No, he hasn't yet divorced. It is has not progressed right from the start as his wife hasn't disclosed the value of the pension. This is the only asset between them now, having sold the family house and split the profit 50/50 8 years ago or so, and the children having all left home!
Did the original solicitor file for divorce in England? Was a petition actually issued?
AFAIK if there is an active petition it would need to be withdrawn or dismissed before a petition elsewhere could be progressed.
In England the divorce and finances are separate. Scottish Law is much more complicated and, for example, the date of [url=Resources/Library/Cohabitation-and-Separation_s33_m1852.html ]separation[/url] is much more key. I believe the process is also much slower because everything has to be sorted before the divorce is finalised. Not an area with which I am familiar though.
Whether or not there are grounds for complaint would depend on a lot of issues. It is the solicitor's duty to explore all aspects of the case in order to be able to advise effectively on financial settlement. This would include things like whether one party had reduced or given up work to care for children. It would also include areas of disagreement in regard to assets and needs.
Whilst it is fair to say that a lot of time and money can be expended on this stage and it can be done perfectly well as a litigant in person with support, it is not an unreasonable thing for a solicitor to do.
Part of this would also include starting the financial disclosure process with a view to reaching financial settlement. Full disclosure of all pensions would be required - and if not forthcoming the matter could have been referred to the court. I cannot imagine disclosure is not a requirement in Scotland and I believe division is generally 50:50 of assets up to [url=Resources/Library/Cohabitation-and-Separation_s33_m1852.html ]separation[/url], but as I say it is not an area about which I have knowledge or experience.
It is the Legal Services Ombudsman office that would be able to advise how to progress any complaint. You would first have needed to make a formal complaint to the firm's complaints partner and given them opportunity to respond. There is a good template available on the LSO website. They also have a helpline.
I agree that it would also be worth getting another solicitor to look at the paper work and advice. I think my question is whether the petition had been progressed in England, how jurisdiction appears to have transferred to Scotland (and whether that was correct if there was an existing petition) and following on from that, what control your partner would have had if the petition was properly issued in Scotland.
It may be that the solicitor has not done anything wrong: the situation is one they could not control.
I've downloaded the template you have suggested. We are getting the paperwork from the solicitors soon and will trawl through the information to see what has been communicated and the chronological order. This could take a while.
Does anyone have any suggestions what to look out for in particular amongst the correspondence?