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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7250
Experience:  28 years as a practising solicitor.
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I received a letter dated on 17/12/12 from solicitor on behalf

Customer Question

I received a letter dated on 17/12/12 from solicitor on behalf of my wife requiring reply with 21 days. Due to a long business trip, I can not go for solicitor within 21 days.
My questions are:

1. if I reply late, what will happen
2. Can I ignore this letter if I want to go for Court action?
3. I do not agree on separation because my wife and I still live in a house together, what should I do?
4. I do not agree on our child's residence proposal, what should I do?
5. Regarding the matter of valuation of the matrimonial home, what should I do?

Dear...
I am instructed on behalf of your wife...... in connection with your separation. My client has explained to me something of the difficulities which she has been experiencing in your marriage and that you are now living separately at....... My client consulted me on 3 December 2012 and would propose that the date of separation be deemed to be that date. Please confirm. I would strongly recommend that upon receipt of this letter you take steps to obtain independent legal advice as to its terms and implications.
In short, my client's position is that your marriage has broken down as a consequence of your conduct towards her. However, her wish would be to attempt to reach a negotiated settlement so that matters can be agreed without the necessity of Court action. She would wish to continue to live at ....... with your daughter Cathy. She would support your continued contact with Cathy and your proposals in this respect are welcomed. However, my client's belief is that Cathy's best interests will be served by her continuing to reside with her in the matrimonial home. It is noteworthy that Cathy is very young, that my client took one year's maternity leave to care for her and Cathy's primary attachement is to my client.
My client has advised me of her understanding of the extent of the matrimonial property and I shall, in due course, provide vouching of the sums at credit of my client's savings account. A valuation of the former matrimonial home will also be required together with vouching of all assets in your sole name, including verification of your interest in your company. Recent company accounts and company bank statements will be required.

I look forward to hearing either from you or from your solicitor within 21 days from today's date so that constructive negotiations can begin towards the resolution of all outstanding matters
Submitted: 1 year ago.
Category: Scots Law
Expert:  clairep80 replied 1 year ago.
Hi
Which part of the Uk do you live in?
Claire
Customer: replied 1 year ago.

Scotland

Expert:  clairep80 replied 1 year ago.
Hi
Then I shall opt out and transfer this to the Scots law section.
be patient my colleague is well worth waiting for
Claire
Customer: replied 1 year ago.


I look forward to hearing from you as soon as possible

Expert:  wendy-Mod replied 1 year ago.

Hi, I am a moderator for this topic. It seems the Professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new Professional to assist you right away, but sometimes finding the right Professional can take a little longer than expected.


I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!

Wendy

Customer: replied 1 year ago.


I am ok to wait for an answer, but hope to get it as soon as possible

Expert:  wendy-Mod replied 1 year ago.

Thank you for your patience. We will continue the search for a Professional for you.

Regards,

Wendy

Expert:  JGM replied 1 year ago.
Thank you for your questions. The answers are as follows:

1. There is no law that says you have to reply within 21 days. Nothing will happen.

2. You do not have to reply at all, you can proceed to court, but if the court sees that no attempts have been made to reach a settlement, there may be implications as regards XXXXX XXXXX the expenses of all or some of the action.

3. Legal separation can occur even if you still live iin the same house but are living separate lives. If you are no longer sharing meals or a bedroom for example you can be separated under the same roof.

4. If you have a better residence proposal which is more in the interests of your child than your wife's proposal then make it. If your wife disagrees then the court will have to decide.

5. In every divorce the assets have to be valued so you will have to allow a surveyor to value the house, a pension value will be needed and a forensic accountant will value the company. Your wife is entitled to half of everything that has accrued during the marriage.

Anything else don't hesitate to ask.


I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 1 year ago.


Thanks, XXXXX XXXXX more questions:

1. Based on your answer 1& 2, does it mean that I can reply the letter late but if I do not reply the letter at all, there is a possibility that in the future when we go for Court action, the Court will judge I pay the fee of solicitor who is on behalf of my wife and other relevant fee relating my wife attemps for divorce?

 

2. My wife and I live in separated room in the house but still share meals,and have to share the only one bathroom or any other facilities. But I have no witness to prove these. Can I not give the consent of separation based on these evidences without witness' proof? If so, my wife might move out from the house, does it mean I have to give the consent of separation after her moving?

 

3. I understand in Scotland, to get divorce can be based on 1 year separation with consent of other party or 2 years separation without consent . Now I still wish to save our marriage and do not want Court action, How can I not give the consent and so I can have 2 years to make effort to save our marriage even though my wife moves out for separation? During these 2 years, if my wife makes attempts for divorce through her solicitor, what should I do, can I simply ignore and wait for 2 years?

 

4. I have the share of the house but the deed and mortgage is with my wife name, can she ask Court to force me leave or can she sell the house without my permission?

 

 

5. If my wife moves out from the house, can she legally move out with my 2 years old daughter without my permission? if I want to live with my daughter, what should I do?

 

6. When is the assets valuation due to be done? I understand my wife is entiled to half of everything. Here does "everything" mean my assets only or mine and my wife's assets together (e.g. her salary, saving etc)?

 

7. I wish to have daughter's residency, I am self employed and spend half day taking care of my daughter but my wife is with full time job, are there any other favours for father you could suggest?

Expert:  JGM replied 1 year ago.
1. Yes, if you have made no effort to negotiate a settlement that could be the case.
2. Evidence may be required of whether you are separated or not. If on balance you live separate lives the court will find that you are separated. Most couples who wish to be apart don't argue of the separation date and in most cases it is perverse to do so.
3. She could apply for a divorce based on your unreasonable behaviour if she has evidence of this. If she does not, then your understanding is correct.
4. She can't force you to leave without a court order based on your behaviour towards her. If your wife owns the house you are still entitled to a share provided it was bought after your marriage as a family home. She can't sell it if you are living there as you have occupancy rights even if you have no title.
5. Yes she can, unless you apply to the court for an order preventing her.
6. Assets include all your property when owned individually or jointly that have accrued during the marriage or in contemplation of marriage. Houses, savings, pensions, investments, furniture. Not salaries as they are income not capital items. Any business would fall to be divided in terms of value.
7. Who gets residency and who gets contact depends on what is in the best interests of the child. Frankly with such a young child you'll be hard pressed to get a court to grant you residency. A joint arrangement would appear to be a more sensible option for you to aim for and have a chance of getting it.

Read the Family Law (Scotland) Act 1985 online. This Act contains the rules as regards XXXXX XXXXX

Also see a solicitor as soon as you can. Your idea of not bothering to reply will not help you in the longer term. A solicitor can look at your specific circumstances and give you specific advice as there are clearly a number of issues with which you need help.
Customer: replied 1 year ago.

Thanks,


1. What is the definition of unreasonable behaviour? It happened yesterday night when we discuss the family issue, we have an arguement verbally but no violence. Both of us called police and police came down to make a record. Will it be an evidence? This happened only once


 


2. How can I apply to the court for an order preventing my wife bring my daughter when she leaves?


 


3. Can I also legally leave with my daughter without my wife's permission?

Expert:  JGM replied 1 year ago.
1. Behaviour whereby one party can no longer be expected to live with the other often because of verbal or physical abuse. Evidence of parties calling the police for assistance is admissible.
2. You need to see a solicitor to go to court. You will NOT be able to do this yourself.
3. No you can't. This would be child abduction.

Please leave positive feedback so that I am credited for my time.
Customer: replied 1 year ago.


thanks,


 


1. At common sense will one time evidence relating unreasonable behaviour make Court judge divorce?


2. How long will it take for me apply to Court for issuing an order fordidding my wife to take the daughter without my permission if she leaves?


3. Now my parantes-in-law and aunt-in-law live in the house, how can I legally let them leave


 

Expert:  JGM replied 1 year ago.
1. I don't understand this question.
2. A day if the situation is urgent.
3. Difficult if they are already in residence. They have no lease but have been invited. You can simply ask them to leave as they are no longer welcome but in the wider context of your matrimonial situation this may not be productive as it might induce your wife to leave with your daughter as well and you don't want that.

You should now leave feedback so that my time is credited.
Customer: replied 1 year ago.

many thanks,


 


the question you said do not understand is:


 


since last night my wife and I argued, although there is no physical violence and both of us called police. This incident happened only one time. If she used this as an evidence in the Court to ask for divorce based on unreasonable behaviour, will Court judge by this only case that I have unreasonable behaviour to my wife (although it was only one time) and decide we should divorce.


 


look forward to your reply. i will leave excellent service

Expert:  JGM replied 1 year ago.
No, that would not in itself be sufficient.

There would generally have to be a pattern of behaviour that a reasonable person would conclude that the two parties to the marriage could not live together.
Customer: replied 1 year ago.

many thanks,


 


I describe all detail relating the question you do not understand:


 


last night my wife and I argued, although there is no physical violence but she called police and reported I shouted at her. I also called police and reported what she said was false , instead, I was calm, she and her mother were emotional and shouted at me. The police came down and make the record.


 


Now I wish to know if in the future she continues to make the false report to police even though I calmly speak to her, what should I do, because my parents-in-law and my wife were together, I was alone. So her parents can be witnesses to support her false report that I verbally abuse her, but I have no witness to prove I was calm and they shouted at me.


look forward to your reply. i will leave excellent service

Expert:  JGM replied 1 year ago.
All you can do is record everything on your phone.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7250
Experience: 28 years as a practising solicitor.
JGM and 2 other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.


Thanks, XXXXX XXXXX contacting solicitor now,


just want to know if the Court's order is late, my wife has moved out with my daughter, what can I do to get back my daughter?


 


look forward to your answer as soon as possible

Expert:  JGM replied 1 year ago.
Your lawyer will have to apply for a residence order.
Customer: replied 1 year ago.

How long will the residence order be made?


What evidences of the best interest for my daughter should I provide to support my request to get back my daughter or requesting my wife moving back with my daughter so that my daughter can be jointed care rather single parent's care?

Expert:  JGM replied 1 year ago.
A child welfare hearing normally takes 6 weeks from the date of raising the court action. No evidence is heard at the child welfare hearing. The sheriff makes a temporary decision based on the submissions of the parties' solicitors.
Customer: replied 1 year ago.

i am confused, without evidence, how can the sheriff judge that my daughter staying with me in current house is better than staying with my wife in another property, so the Court makes the order my wife has to give back my daughter to me.

Expert:  JGM replied 1 year ago.
As I said it's a temporary order until the court hears evidence, at the end of the case. Before that the case generally proceeds in writing. Your solicitor will be able to tell you what will happen in your instance and what orders are to be sought. You can also read the court rules here:

http://www.scotcourts.gov.uk/rules-and-practice/rules-of-court/sheriff-court---civil-procedure-rules/ordinary-cause-rules

Chapter 33 is the relevant section for family law cases.

Customer: replied 1 year ago.

well, if I ask for Court order now and successfully get it, when will be the 2nd hearing for my wife or her solicitor defend this Court order? witinin one week? , if my wife wins in 2nd hearing, she can leave the current house with my daughter legally, I will request 3rd hearing, how long will it take for Court's FINAL decision to decide my daughter's residency is with me or my wife?

Expert:  JGM replied 1 year ago.
What is your local sheriff court?

Customer: replied 1 year ago.


Edinburgh

Expert:  JGM replied 1 year ago.
If you get an immediate order pre service the court will order a further interim hearing normally within a week to to days.

The child welfare hearing will be about 6 weeks from the date of service of the action.

The proof hearing, which is the first and only hearing at which evidence will be heard will take place after about six months from the date of service.

However every case is different and your solicitor will have to advise you in more detail as to what orders are likely to be made and what you should be seeking from the court.

Please leave positive feedback so that I am credited for my time.
Customer: replied 1 year ago.

1. that means if I get an immediate order, the after one week, there will be an interim hearing, if my wife wins in this interim hearing, she can leave the house with my daughter legally and keep her for about 6 months until the proof hearing. If I win, I get back my daughter but have to wait for 6 months. Is it right?


 


2. If the above is right, I will wait for my wife next action, if she leave the house with my daughter without my permission. I then ask a Court order, is the hearing within a week as well, if I win, then I can keep my daughter at least 6 months until the final hearing, is it right?


 

Expert:  JGM replied 1 year ago.
Yes, but you may want to seek an order before your wife leaves with your daughter. It is much more difficult to undo something than to stop it happening to start with.
Customer: replied 1 year ago.

so actually the immediate order can be valid only 1 week, there is a risk that I lose my daughter for at least 6 months if I lose the hearing in a week.


but if my wife leave the house with my daughter without my permission. Then I ask for Court order and win in the hearing, the order can be valid at least 6 months, even though I have the risk of losing the final proof hearing, at least I keep my daughter 6 months


 


Am I right?

Expert:  JGM replied 1 year ago.
No it doesn't work that way. The first order if any, will simply maintain the status quo until both parties are represented before the sheriff. The order can also be varied at any time if the court on the application of a party in concerned that an order then in force is no longer in the child's best interests and should be varied.

As I have already said it is much more difficult to undo something than to stop it happening to begin with and if you do nothing you are running a risk that your wife applies for a residence order before you have a chance to do anything.

You should be seeing a solicitor as soon as you can. Some will be working between Christmas and New Year and the courts will be sitting.

Please leave positive feedback so that I am credited for my time.
Customer: replied 1 year ago.


as you said" If you get an immediate order pre service the court will order a further interim hearing normally within a week to to days"


 


So my questions are :


1. It seems not very helpful for me to get an immediate order before my wife leaves with my daughter. Even though I get an immediate order, there will be an interim hearing within a week, If I win, I can keep my daughter for at least 6 months until final hearing. if I lose in this interim hearing, my wife can legally leave with my daughter. The immediate order can preventing her only 1 week.


 


2. It appears only one week time difference If I get the Court order after my wife leaves with my daughter. Because ss required by law, my wife or her solicitor has to attend the hearing within a week, if I win , my wife has to return my daughter to me otherwise police will enforce her to do that. If I lose, the result is the same with my action to get an immediate order-I will have to wait for about 6 months to get back my daughter if I win in the final hearing.


 


Am I right?


 


3. Can you explain more regarding the risk if my wife applies for residence order before me? I orginially think either of us applied for residence order, the other party can defend the order. So even though she applied firstly, no much influence on my daughter current living status. In addition, the key to win my daughter's residency is the evidences I can show for the best interest for my daughter.


 


Am I right?


 


I look forward to your further expert's advise


 

Expert:  JGM replied 1 year ago.
No, I don't agree with your analysis. I have given you my answer and the reasons for it you should seek the advice of a solicitor as soon as possible. If she gets an interim residence order it will be much more difficult to have that recalled but it's up to you to accept that or not.

I am gong offline for a while.
Customer: replied 1 year ago.

ok, got your points.

Now there is another problem:

my aunt-in-law will move in my 2 bedrooms house and my wife has required me to sleep in the sitting room so she and her aunt can sleep in my bedroom and her parents can sleep in another room with my daughter. Although I refused this, I know when I return home from my work they must already occupy my room. as you know, now I will definitely avoid any physical contact or verbal arguement with them so that they can not have any excuses to make a false report of unreasonable behaviour. But what can I do at that time? to call the police? Are there any organisations I can get help for this problem?

 

I am not sure in law what they do can be regarded as abusing me physically and psychologically. If so, what should I do, particularly now I should avoid any arguements with them?

Expert:  JGM replied 1 year ago.
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