Re:Implication of not showing up for Final hearing?

Hello

I am in the final stages of getting the finances resolved (got my Nisi and Child Residency order over a year ago).

My ex has been unhelpful/in denial over the financial separation. Mediation failed as he would not cooperate; he failed to provide disclosure at the Initial hearing and provided only partial disclosure at the FDR hearing, causing the Judge to call it to a halt and order a Final hearing. His stalling has caused the divorce process to drag on for over 2 years.

The Final hearing is now just 3 weeks away. So far we have not received updated disclosure or answers to the Schedule of Deficiences. My solicitor has been advised by ex's solicitor that she is unable to contact her client despite repeated attempts (I know her letters arrive as we both live in the MH still and I see them on the doormat!) and that she has advised him that if he doesn't make contact asap that he will have to represent himself. My suspicion is that he willyet again try to delay any decision, either by not disclosing, by not having legal representation, or simply by not showing up in court.
My questions are:
1. If he fails to provide full disclosure, am I right in thinking that this time the judge will make an order that day regardless, as this is the Final hearing?
2. If he no longer has a solicitor, what happens re the barrister (we both use one). Can a barrister still act for him? And can he request deferral of the hearing on the grounds that he has incomplete legal representation?
3. What happens if he doesn't attend court? Is a Order made regardless, or will the judge adjourn?

thanks!

Unfortunately there are no certainties in family law, just probabilities.

If your ex doesn't attend the final hearing the judge could possibly infer a decisions and make an order at the final hearing in his absence. There is also the probability the hearing could be adjourned to allow your ex to directly instruct a barrister or the judge could order your ex to attend attaching a penal notice it it is felt necessary. That would mean ultimately might be arrested and brought to court by the police.

Rest assured that although the courts may appear to give a lot of rope it is enough for someone who doesn't comply with court procedures and rules to eventually hang themselves.

Court proceedings are all about due process. The court *can* make an order in the absence of your ex *if* justice is being served.

However, if in any doubt the judge will adjourn the matter which will delay further. You may obtain a costs order against your ex but you rarely recover all of your costs and those costs will come out of your ex's share of the matrimonial assets. If the assets are not huge, you will probably bear some of the brunt of the costs order depending upon the types of orders sought.

The best course of action is to have your solicitor write a letter to your ex giving until the end of this week to comply with outstanding directions and to confirm that he will be attending court for the final hearing. In default of such action you will be making an application, on paper (without a hearing), for a penal notice to be attached to the outstanding directions and that costs of the application will be sought from him in any event (this will be limited to half an hour for your solicitor's time and a court fee of around £100).

In the letter it should be made clear that in the absence of the outstanding information and court attendance, you will be inviting the court to make a final order in any event but that if the court decides to adjourn you will be seeking an order for costs of and occasioned by the adjournment in any event on the indemnity basis.

As your ex currently retains a solicitor, the letter can be sent to her and any subsequent penal notice can be served upon her too.

You have to ensure that you have all of your ducks in a row before firing otherwise the matter will be delayed unnecessarily. Giving advance warning of your intended course of action gives little room for your ex to manoeuvre.

Charles

just curious - how on earth do you manage to stay in the MH with such an incooperative person? It must be awful.

HI sure know how you feel went through 3yrs 3 wks 3 days of it ! I attended court as the respondent several times and he didnt show then I was advised to cross petition. 3 attendences at court and he didnt show either. He never handed in a form e eventually judge (same one 6x) granted final hearing and served notice to attend to his solicitors and sent directly to his house. At final hearing judge said he cant be allowed to bury his head in the sand, Granted all I asked which was half and gave him 28 days to pay all costs except final hearing as I had achieved a result, he has seven days left to pay now or face penal notice. I understand your flustration. Make sure your barrister asks each time for costs to me paid by other party. Final judges words to me were I wish I could have given you more. Relief is what he gave me and the ability to move on in the knowledge I faced lifes problems head on and he remains an ostrich.Priceless. Take care and if he doesnt show it only serves to work in your favour.

Thanks everyone for your comments.

The Final hearing is now 2 weeks from today. I had a long meeting with my solicitor this morning - my updated disclosure etc etc is complete and has been submitted to court, and we have prepared an Open position/Settlement offer that will now be sent to the other side, even though we have heard nothing yet from him or his solicitors re his disclosure. My solicitor is writing to his to remind him that he needs to comply. There's nothing more I can do at this point.

My guess is that he will attend court for the hearing (he has attended all the 3 previous) but that as usual his disclosure will be provided just prior to the hearing and it will be rushed and incomplete, so yet again I will be pushed for time to review it, and will have to draft a list of missing/disputed items to bring to court on the day.

Hopefully though the judge will consider that the disclosure is 'complete enough' to enable an order to be made that day. And yes, we will be asking for costs!

Update - well, it's all done. He did show up for court though he never did provide full disclosure However between the two barristers we were able to hammer out an agreement before going before the judge, because even though he hadn't made formal disclosure I had a fairly good idea of his assets etc so I was comfortable with that. I was pleased with the outcome - no sudden windfalls but no nasty surprises either. Pretty much what I'd hoped for. I'm now happily moved to a new home and busy making my new life.