Thursday, October 05, 2006

Consent Order Conundrum

I've had several cases recently where the court has refused to make a financial consent order because the judge was not satisfied that the order was fair and reasonable, despite the 'disadvantaged party' making it absolutely clear that they were happy for the order to be made. I'm not sure that a system that works in this way is doing the parties any favours, as it seems to be either sparking dispute where there was none, or denying couples 'closure' to their divorce.

For the benefit of non-lawyers, a financial consent order is an order setting out the terms of an agreed financial/property settlement on divorce and, usually, dismissing all other financial/property claims, thereby ensuring that the settlement is final. Before the court makes the order it requires both parties to provide a few brief details of their financial circumstances, so that the court can ensure that the order it is being asked to make is fair and reasonable.

The problem arises when, as happens quite often, one party is perfectly happy to accept less than they might be entitled to. There could be many reasons for this that do not affect the court's decision, such as guilt at being the party responsible for the breakdown of the marriage, genuine belief that an equal division of assets would be unfair, or simply not being interested in material things. Would it not be best if the court granted such people the order they want, provided it is satisfied that they understand what they are doing, and that there has been no duress or undue influence?

105 comments:

  1. This seems to be happening more often. At Swindon County Court one judge seems to list approval hearings for everything even if the parties are represented. He then spends his time trying to persuade parties that they could get more if he had heard a full case. This is with their Solicitors sitting there!! What is the point of parties reaching agreed orders if the court is then going to refuse to make the order?

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  2. My now ex husband and I spend a lot of time argueing before reaching an agreement without having to go to court.
    Now a Judge has decided to get involved. It will stop my house move and prevent me finding a permanent home for our daughter. What is the point in an out of court settlement. Now I have more worry,and more time for my daughter to be unsettled.
    I am so upset

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  3. As an applicant for divorce I would welcome a judge's consideration of what is fair and reasonable, as I would also welcome the opinion of a solicitor and counsel.

    Where a draft consent order has been painfully thrashed out and drawn screaming and bleeding into the world within the context of an acrimonious divorce with agreed child contact hanging in the balance, I would expect the judge to respect the decision of the parties subsequent to them hearing his opinion and let them drag their mutilated emotions and stress-wracked bodies off into their respective sunsets to make the most of what is left of their miserable lives in quiet despair -without harbouring thoughts of malice, spite and revenge against the world in general and specifically the said judge.

    Whose divorce is it after all?

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  4. Vail: Many thanks for that comment, which I think deserves a post all of its own.

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  5. I will try and keep it simple.

    Married for 16 years, separated for 18 months. No children. We are divorcing, no problems with petition. I am not defending.

    I am blind person living on state benefits. The only asset is house. Mortgaged in wifes name only but I have declared an interest in Matrimonial Home by putting a charge on ­title­ at Land Registry.

    My wife has left the mh and is working in different part of the country now. She is renting out mh to tenants in order to cover mortgage.

    I have no problem with any of this and do not wish to seek massive share by forcing her to sell the house. To be honest I was a bugger in the marriage not violent or anything but I feel I owe her something for standing by me for 16 years. I do think I am en­title­d to something after 16 years. She agrees and we have come to amicable financial settlement which I am happy with.

    Her solicitor is a bit of a waste of space does not communicate with her and takes weeks to draft letters make appointments etc. She is happy to proceed with divorce doing forms herself direct with court. The petition has already been served and answered by me.

    Naturally we both want consent order to be legally binding and a clean break so we can both move on. Is this too much to expect?

    Rightly or wrongly and given the all too frequent communication problems with her solicitor my wife as decided to use an on line clean break consent order. This seems to be ok but I have expressed small concerns that the wording may not be correct and the service may not be up to scratch.

    Basically the wife has agreed to make me an early payment once we both sign consent order with the balance being paid in a lump sum on decree absolute. Both she and I have been told this is ok but whether on line service can cope with this remains to be seen.

    Now here comes the crunch. Despite me being happy with settlement, I have no interest in other matters, amounts etc concerning my wifes affairs, my solicitor seems hell bent on me seeking ancillary relief of a much larger amount and taking it through the courts if required.

    My solicitor who I have approached just for advice says she has only my interest at heart but of course would make money from any drawn out proceedings.

    I have made it clear that I am happy with the settlement even though it only amounts to around 30%. She says the judge will throw out the consent order.

    Is there any point to trying to sort things out between the wife and I in a friendly adult manner?

    Advice, comments and help appreciated.

    Thanks in advance.

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  6. Hi Graham,

    I'm afraid I can't advise on specific matters on this blog, but it appears that your case may be exactly the type that my post was referring to. Your solicitor may well be correct that the court will refuse to make the order, and you will not therefore be able to finalise the settlement. It is possible, however, that the District Judge may be prepared to make the order after hearing from you personally. As to the wording of the order, you must take advice upon this, if you have not done so already.

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  7. Hi

    just wondering if a consent order 56days has ended and other party agreed to pay lum sum and their solicitor and client has to delay for another 2weeks.
    my solicitor is charging intrest on the lum sum per day till he recieves that money.
    at what percentage is that charge he thinks its 8% is this correct.

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  8. Yes, 8% per annum is correct, unless the order specifies otherwise. It is only payable if the lump sum is at least £5000.

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  9. I did engage the services of a solicitor until the latter part of divorce proceedings. As a result, the decree absolute was completed.

    Although a signed mutually agreed financial settlement was included in my respondent response to the courts, I now understand that a consent order is still required to make this legally binding.

    Although my ex wife has said she is happy with the settlement, her solicitor has reservations. Despite this she has told them that she is still willing

    I have been asked to complete a full financial disclosure statement (Form E). Is this necessary if we have an agreement in place?

    My conundrum is should I continue with the consent order or not.

    On the one hand there is the risk that it will be rejected by the courts and withit the possibility of increased legal fees whilst a more acceptable settlement which is likely to cost me more is arrived at.

    On the other, is it reasonable to consider that we can both stick to our agreement, thereby negating the need for the order.

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  10. You are correct that the settlement is not final and binding until an order has been made.

    A Form E is not required for a consent order - if your ex-wife's solicitors are asking for that, it indicates no agreement has yet been reached (assuming they are following her instructions).

    You cannot rely upon your wife keeping to the agreement.

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  11. I just received decree absolute and my solicitor informed me that I need to get Consent Order to stop my ex demanding any financial setlement in the future, unfortunately it's going to cost £400 including court cost (I think this is too expensive)I already paid £1300 for the divorce and the district judge said that ex doesn't have to pay anything.

    All I wanted was a clean break, we don't have any kids or any assets so there is nothing to fight for.
    I am not sure if this is really necessary for me to get(consent order) all I now got is a house which I recently bought with my current partner but there is no equity in it. Than our life insurance and my pension. I can't afford to spent anymore money but on the other hand I am worried that my ex will want more later, but surely he doesn't have a right to my place after we have been divorced. What do you think I should do?

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  12. Sorry, but I can't give detailed legal advice on this blog. Having said that, your solicitor is correct - the only way you can ensure that your ex can't make any claim is to obtain a consent order, if he agrees. It may be that the possibility of such a claim being successful is very small, but do you want to take that chance? The estimate of £400 sounds about right.

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  13. John, have read your blog with interest and have two questions that I was hoping you could help me with
    I am in the process of completing the "Statement of Information for a consent order" form and it requires me to include my Capital Resources - should I include outstanding loans as these are significant and alter my financial position coniderably?
    Secondly, in terms of future plans, whilst I have nothing concrete arranged at the moment, is there a time limit after which I complete the form before I could potentially move in with somebody else if I have not declared it on the form?
    Thanks

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  14. I suggest that you mention the loans in the 'Other information' section. There is no time limit, but a change of circumstances very soon after the order is made could affect the order, if that change invalidated the basis upon which the order was made.

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  15. I have been divorced for two and a half years, my ex-husband was the guilty party and we settled out of court. However, the solicitor I used did not point out to me that in the future my ex could come and claim assets from me. I am now in a wonderful relationship and following a heated conversation with my ex, consulted a solicitor who is now writing to my ex to persuade him to sign a consent order document so that we can return to the court and ask them to endorse the arangement. At present my ex is not answering the letters, and according to my solicitor there isn't a lot more we can do. So, I now cannot move on with my life as my current partner is not willing to take the chance to move in together as my ex in effect could claim sone of his assets too!!!! Help - any suggestions??

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  16. Your current solicitor should be able to give you an indication as to whether your ex is likely to succeed in making a claim against you. If your ex does not cooperate, then the only way you can obtain an order is by making an application to the court (assuming you still can - your solicitor would be able to advise you about this), although such an application would involve considerable expense.

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  17. I have a consent order sealed approximately 9 months ago. As well as division of equity it details the amount of child maintenance to be paid ( largely based on the CSA calculator). As my new partner is expecting in December can the amount of child maintenance i pay be reduced (as the csa would recommend)as i will have another dependant, or is it "cast iron" and unchangeable

    Advice/comments appreciated

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  18. Yes, it can be reduced - maintenance is never 'set in stone'. If you can't agree matters with the other parent, then you can either make a variation application to the court or, after 12 months have elapsed from the date of the order, apply for a child support assessment, to replace the order.

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  19. My partner was divorced this year and a consent order was made stating that his ex wife can live in the house they jointly own untill the kids leave school. During the separation he was paying the morgage plus maintenance for 18 months as well as paying to live himself. Now he has £30,000 worth of debts that he can't pay. Does he have any grounds to make her sell to release his equity to pay these debts as if not he may have to declare bankrupcy?

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  20. Probably not, but your partner should seek legal advice before taking any action. Unfortunately, I cannot give such advice via this blog.

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  21. Is there any case law in relation to duress as far as it relates to a draft consent order- particularly where my need to get away from my ex placed me in an impossible position of having to sign anything just to get out and maintain my sanity?

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  22. That could give you grounds to have the order set aside - take some legal advice.

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  23. I was divorced in Feb 2007, without a consent order or any financial agreement in place. My ex lives in the mh, and we have 3 kids that spend average of 3 nights per week with me. Now that we agree that the mh should be sold, we have no legally binding agreement in place and have to get this sorted before the house can sold. How did my solicitor manage to get decre absolute without this agreement?

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  24. Unlike divorce systems in other countries, it is not a requirement that financial/property matters are dealt with before the divorce is finalised. Your solicitor should, however, have advised you.

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  25. Having got divorced in 06 with an asset split of 50% my ex is looking to re-marry and we need to finalize the consent order. He refuses to put down full disclosure, ie the house he is now living in (owns with new partner), cars (4!) and pension. Saying that he only needs to complete what is applicable today and not what has occurred since the split - ie redundancy, with large payout, partner owning 3 other houses. I am struggling in rented and am sure he feels he will get 'slaughtered' by a judge, but I do not want this and have re-assured him over and over. Is this likely to happen. Our 1 child lives with me, but she stays overnight with him 40% of the time.

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  26. All I can say is that the district judge may not be prepared to make the order, although assets belonging to your ex-husband's new partner will not be taken into account.

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  27. Hello, I am now 28, got married at 21 and separated with my wife for the last 3 years, We have nothing together, no house, no kids, etc. I am working full time and she is studying, I think. I want to start divorce proceedings and there is a website i found that will do everything for you etc, but i have come across this thing about clean break/consent order. Even though we have no assets, kids, etc, should I still go ahead with it also?

    Thanks

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  28. You would still be well advised to obtain an order, to ensure that neither party can make a financial/property claim against the other, in the future. The order would simply dismiss all such claims.

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  29. John,

    Thanks very much for your reply.

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  30. I have been divorced 7 years and living with my partner for that time.My ex has lived with his new partner for a few years.We have 4 children between us 2 older than 18.He is now pushing to complete the consent order after dragging his heals for years.Do we really have to trawl through joint finances and accounts for the courts benefit or can we just agree to accept things as they are.It seems stupid to make trouble where there is acceptance.I know that he hid assets before and will do it again as he is in an even better position than before.Its almost impossible to prove the truth so Id rather just accept and sign without loads of financial declarations.Will a judge accept this if we both sign a solicitors form?

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  31. Each party must complete a 'Statement of Information' form, detailing their means. Signing the form only indicates that the details that party has given are true, not that they agree with the other party's details. Having said that, I really think that you should take some legal advice before proceeding.

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  32. After having sat and read this whole post and comments it seems as if things have come a little off topic! But, with it being the first post on your blog i have read, I am both fascinated and shocked: The amount of people turning to other means for advice is astounding and suggests that access to legal advice is not what it should be. Saying that I can see that it is difficult to hold back on advice where people ask for it!

    I have been searching for a TC in a predominantly family based firm for 3 years with no avail (long story) but this blog appears to be a very beneficial way to stay ahead such a fast moving area.

    So with regard to your initial post (in 2006!): I think your comment has a point - i.e. that the judges might take their discretion too far (as some of the earlier posts evidence) but in truth a lengthy stressful process may lead to a "to hell with it attitude" that is genuinely hard, if not impossible to identify. Legal aid solicitors may not feel financially obliged to push an incredibly lengthy settlement too far if things simply are not working out - and although, bearing in mind that this situation is far from ideal, a party might seem non-chalent about certain assets, the discretion of the judges should be given the benefit of the doubt.

    Saying this I am sure that my suggested dissent of your opinion is down to an undeniable and significant lack of direct experience.

    I look forward to exploring more of your posts :]

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  33. Hello, and welcome to Family Lore!

    I do not necessarily disagree with your thoughts on consent orders - it is a difficult area.

    Oh - and good luck with your new blog!

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  34. Please don't tell me to seek legal advice. We can't afford to do so especially in a recession. The court service is no help.

    What court orders are available to close off ancillary relief after absolute?

    You cannot have a consent order without consent, and it makes no sense to file for ancillary relief where none is sought.

    My partner's S2BX is too lazy to file any paperwork, but we need closure so that we can get on with our lives and I can feel that half of what I work for will not go into his pocket at the whim of a judge years later. Will any judges be concerned about anyone who refuses or is too lazy to get involved with the legal process?

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  35. If the other party will not consent, then you will have to make an application to the court for a financial/property settlement ("ancillary relief"). Otherwise, I'm afraid I cannot give advice via this blog.

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  36. This is not entirely linked to the original comments but I think worthy of mention.

    My husband got divorced and went to court to finalise financial settlement (ancillary relief) which included arrangements for child maintenance. Without going into detail, it was agreed in this order that maintenance would be deferred until the Former Marital Home was sold as my husband has taken on the mortgage and associated costs.

    12 months has passed and due to the housing market being the way it is, the house has not sold, so my husbands ex wife has made a claim through the CSA and been successful!!

    In summary, please be careful, as the maintenance part of a consent order only has a life of 12 months. After that all bets are off and the claimant can make a legitimate claim through the CSA regardless of the consent order!!

    I thought this was worth a mention for all those who think that a consent order is final!!

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  37. Thanks. A good point, and a trap that many fall into.

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  38. I am going through a divorce after 30 year marriage broke down I have childern who are grown up and the house has already been sold abd devided 50/50 between the two of us. On the pettition my Ex to be has ticke the box for court to consider his finacial situation I do not want to persue it but I have nothing more to give him, what kind of things will a judge ask me to declare? can you help?

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  39. I can't give any advice here, but I will say that including financial claims in a petition does not necessarily mean that you intend to pursue them. It seems that matters may actually be agreed, in which case the settlement is only final if you have it incorporated into a consent order. The court will require each party to complete a Statement of Information, which sets out the details that each party will have to disclose. I recommend you see a solicitor for some advice.

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  40. Hi John,
    Wonder if you can help. My partner divorced in 2000 and had a consent order, including child maintenance, made. He is now retiring and one daughter is 18 and the other 16, both in ft education and likely to go to uni. his ex has actually agreed to a reduction in maintenance amount, but does he have to go back to court or can he go to csa? Also if he does have to go to court does he have to fill in forms to declare assets etc, or can the court just rubber stamp the new payment amounts?

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  41. He could ask the court to vary the order, in which case a few basic means details would be required so that the court can check that the variation is broadly reasonable. Having said that, many people agree variations between themselves, without going back to court (obviously he may want some proof of the agreement, in case the mother should try to enforce the original order).

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  42. Hi John, many thanks for this. We have been told by one solicitor that he can go to the csa, albeit the agreement was made before 2003, another solicitor said no, any variation would have to go to the court (or be agreed privately between themselves) rather than the csa. It is a somewhat moot point as we are using solicitors letters to use as proof of the agreement, which hopefully will suffice, but I fail to see why we have received such conflicting information on what should be a factual court versus csa question.
    I thought I was vaguely intelligent, but this one has me beat!
    Once again, thanks for your help.

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  43. Hi there

    Ex and I divorced in 2007, no children of the marriage, but FMH stayed with ex as she had children from a first marriage.

    Consent order directed that ex wife could pay off second charge by serving notice with two valuations. In default of agreement of valuations, value of house to be determined by surveyor nominated by President of RICS. Ex gave two RICS valuations with notice, but estate agents tell me that house is worth more than valuations sent.

    Ex is clearly taking advantage of current housing market, so if I don't agree with the third valuation given, is there anything I can do?

    Thanks

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  44. The question is, quite simply, whether the terms of the order have been complied with. If that is not clear, you can apply to the court for directions upon the matter. I'm afraid I can't deal with such issues via this blog, so I recommend that you consult a solicitor for advice.

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  45. Hi John
    My partner was divorced 15 years ago with no financial settlement. Ex now needs to transfer property to his and current wife's name. They have agreed a sum and a consent order has been signed by both but he is now asking for the transfer to be made before the order is approved by the court as his new mortgage offer is about to expire. any advice would be welcome!
    Thanks.

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  46. People often do implement an agreement before the order is made, but cannot be forced to. A mortgage offer can usually be extended or renewed, but if that is not the case and another offer can't be obtained, then the deal could fall through. I would recommend your partner consult a solicitor for proper advice, before deciding what to do.

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  47. Hi,

    I wonder if you can help. My ex-wife and I divorced in 2007, a consent order was signed and agreed, as part of the consent order, i was due to recieve £4000 this month, my ex wife has now stated that she has no intention to pay and intends to go to the court to apply for the consent order to be amended - 1st question can she do this and what are the implications, also the order states delayed payment will result in interest accrual at 8% which she states she will not pay. Any advice would be great - thank you.

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  48. Highly unlikely that she will get the order amended. If she is in breach, then you should take enforcement action. A solicitor will be able to advise you as to options.

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  49. Hello, as a person wishing to amend a consent order which is 2 years old, can I ask if your information given 18th July 2008 about interest only applying in sums over 5,000 is still the case and also if a change in circumstances can be used to mitigate the reason for amending a consent order

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  50. The rules on interest haven't changed and, as I've indicated, the circumstances in which a consent order will be amended are very limited.

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  51. Im in the process of getting a divorce, I have been granted a decree nisi and after 8 months of mediation we agreet to a 65/35 split on the finances in his favour. My solicitor drafted the consent order and he my ex is now refusing to sign, he lives in the fmh but my name is still on the mortgage and title deeds, i am now renting with our 5 year old daughter. I get no maintenance at all. He is difficult about everything and i dont know where to go from here, i have a solicitor but he doesnt.he pays mortgage etc on fmh so i accept that he cant pay for everything but he keeps agreeing to things and then changing his mind, not allowing either of us to move on. Can i force his hand at all?

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  52. If you don't have an enforceable agreement then you can apply to the court for a financial settlement. You can also apply for child maintenance. You should discuss these things with your solicitor. If you are not happy with the advice you are getting, consider changing solicitor.

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  53. I get legal aid, my solicitor said if it goes to court i will have to pay back fees, which i can't afford as i single handedly supporting me and our daughter. I have considered changing solicitors but was worried that it would just complicate things. What do you mean by enforceable agreement?

    thank you

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  54. I'm afraid I can't give specific advice. Changing solicitors should not, however, be a problem.

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  55. Hello
    Im confused! You have stated that a consent order is not easily varied but then in an earlier post you seem to imply that after 12 months the CSA can be applied to in order to vary the child maintenance terms. So if I have a consent order sealed in May 2008 by the court, can I now apply to the CSA to reduce the amount of maintenance I have previously agreed to pay?
    Thanks for your clarification.

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  56. Maintenance can always be varied anyway. The rest of the order (dealing with the house and other capital assets) is usually final.

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  57. I find the law strange. I signed a Consent Order agreeing to a number of financial terms including the payment of a lump sum based on a property value. I have stuck to my side of the agreement and was ready to pay the lump sum and then my partner refused to agree the valuation of the property and is demanding more as the property would be worth more if improvements were made to it.I thought that if you signed a Consent Order you at least need to stick to it as why sign one at all?

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  58. If the order was made then it stands unless a successful application is made to change it, which is highly unlikely.

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  59. Hi John
    I’ve read through this blog with interest!
    My wife and I split up in Feb after 13 years of marriage. In Feb 2007 we bought the council house we were living in under the RTB scheme which has a claim on the property for 5 years! Furthermore we took out a 3 year fixed rate mortgage which has heavy redemption penalties. The there is approx 6 months for the fixed rate to run and 30 months before the RTB claim ends. My wife and I have a mutual agreement in place where I am paying half the mortgage while she remains in the property. However come Feb our mortgage will reduce substantially and my ex has in principal agreed to then pay half of a home improvement loan I am currently paying all of.
    The house is really the main asset the both of us have and we have informally agreed that when sold we would split 50/50. The financial agreement we have between us may need to change over the following 24 months from Feb due to changes in interest rates etc.
    My question is, is it sensible/even possible to try and draw up a clean break agreement at this stage that has the flexibility built into it that I indicate might be required.
    Secondly is there any difference or complication between having this in place before the decree absolute is pronounced or after.

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  60. You should have a consent order drawn up, and there is no reason why it cannot reflect what has been agreed. The order should preferably be made before decree absolute, although it will not take effect until decree absolute.

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  61. My ex-wife and I agreed the contents of a consent order, which was duly signed and sealed by the court a couple of months ago.

    It was a clean-break order, in which she got almost all of the house (less £25k) and I pay no maintenance.

    The £25k was due to me in the event of her selling the house, cohabiting, or our son leaving full time education or hitting 18 - whichever event happened first.

    Shortly before the order was sealed, she said that she'd be willing to move house and pay me now if I would pay the mortgage redemption penalty. I agreed.

    She's since moved and paid me, but withheld a further £5k plus a share of legal and agents fees which we hadn't agreed on.

    She claims that she doesn't have the money to pay me the £5.8k or so outstanding. She says she withheld the £5k because she's not been able to sell shares in a privately held company that she'd been planning on to raise the money (as she can't find a buyer for them).

    If I sought directions from the court on enforcement, what might the outcome be? She's self-employed, so (as I understand it) attachment of earnings can't be done. She wouldn't be able to afford a top-up mortgage.

    Would I be wasting my time on enforcement if she genuinely doesn't have the money?

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  62. I couldn't possibly answer that here, but obviously when enforcing any money debt you must consider whether the other party has the means to pay. Remember, however, that there are other ways to enforce payment, such as a charging order over property.

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  63. My partner (respondent) has just been granted a decree nisi from his wife (petitioner).

    They have worked through their finances and split everything 65 / 35 in the wife's favour. All very amicably.

    The wife has been advised not to apply for the decree absolute - I understand there is some sort of financial benefit but not sure what, by delaying applying for the absolute.

    My partner wants to apply for the decree absolute after the 3 months after the 6 weeks and 1 day rule (so in January).

    In readiness for that should he get a consent order completed and signed by them both? And how does he get an order? I guess this has to accompany his application to the court for the absolute?? They have agreed a clean break settlement.

    He doesn't have a solicitor. How does he apply for the absolute - or is that another blog ... ? :)

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  64. I'm not sure why the wife has been advised not to apply for the decree absolute if everything has been agreed, as the agreement will not take effect until the consent order is made and the decree nisi is made absolute. She may simply have been advised not to apply for the decree absolute until the consent order is made - it should usually be made prior to, or simultaneously with, the decree absolute. If your partner does have to apply for the absolute himself then he will need to file an application and the court fee of £80. The court will then fix a hearing and the application will have to be served upon the wife, or her solicitors.

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  65. Hi John,

    I have got my solicitor to draw up a consent order. I have two daughters and my ex will have my eldest and i will have the youngest. There will be no maintenance payments involved. He is transferring the joint property into my sole name on the basis that i agree to my eldest daughter to live abroad. I am the petitioner and the court has already granted the decree nisi and also ordered my ex to pay the costs of the divorce but which he will not if he giving me the property.

    My ex moved out before i started the divorce proceedings and never paid the mortgage after that. The initial property deposit was mine & my parents money.

    My solicitor has just told me today that the court have rejected the consent order as property and children issues must be separate. She has also advised me that the courts may refuse my eldest daughters residency abroad. Can you please advice as to how i can resolve this issue?

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  66. It is correct that property and children matters must be separate, although obviously arrangements for children can impact upon the property settlement. You will have to justify the terms of the consent order by some other means. as for you eldest daughter, the court need not be involved if all parties are agreed. You should discuss these matters with your solicitor.

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  67. Dear john
    My husband & his ex wife went to court in 2006 to finalize a consent order, and both parties were happy with the outcome & financial implications of the consent, as part of the consent it was statedthat my husband should pay a total of £400 pounds to her made up of child support payments & spousal maintance, it's didn't give diffined amount of these maintance charges, it just stated that if my husband went via the CSA & it was less than £400 he would have to make the amount £400. He has now gone via the CSA & he was told for his 2 children he should pay £280 which he is fine with but that obviously means he is paying the ex wife £120 spousal maintance!! Since the co sent or was made a fee tho be have changed for both parties, such as she has paid off her mortgage & she lives with her mother,she also only works part time even though she could work full time, for us we have had a child & my son (my husbands stepson) who is registered as having a disabililty was receiving a middle rate DLA amount when the order was made they have now changed it ti the highest rateas his disabilty has worsened & now I am his full time carer, meaning I can't work full time( I work part time) putting more financiall pressure on my husband, also he suffers from high blood pressure & the doctor has told him to leave his job but he can't do that with this
    enforceable consent order over his head? What are the
    chances of changing of ending the consent order?
    Thanks

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  68. I can't comment on chances of success, but if it was a maintenance order it can be varied. Your husband should take legal advice.

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  69. My consent order which was agreed 4 yrs ago states that my ex will pay maintenence for his children until they leave full time education or reach the age of 17, whichever is the latter. My youngest is now 16yrs 4mnths old, left school and is looking for work, and my ex has this month decided to stop paying. After giving him extra time, I asked him what is going on and he said that he would be able to stop now if we had gone through the CSA so he doesn't see why he should pay any more. Can he do this or is the consent order still valid until my son is 17?

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  70. Thank you John. I thought that was the case but he is insistant that he is not paying another penny. What do you advise me to do now as I'm sure you understand I do not wish to incur any costs here!

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  71. I'm afraid I can't give advice, but you should get some ideas here.

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  72. Could you advise if a clean break can hold up a decree absolute? I have submitted divorce papers and received a decree nisi, then whilst waiting to submit for absolute - I submitted the clean break documents - the judge has now queried this and has set a hearing date for 6th Nov, will this stop me from obtaining the absolute? and do I need to attend this hearing? - neither party is represented, separated now for 4 years, both happy with clean break. Thanks in advance.
    JW

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  73. Decree absolute may be made before the consent order. If the court has fixed a hearing, then the parties are required to attend, unless the court says otherwise.

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  74. When i got divorced myself and my ex signed the consent order in which the amount of maintainence i was to pay to her etc.
    Recently i remarried and are living happily together and the kids love their step mum to bits.
    However the ex is now demanding more maintenace becasue she is not with anybody and seems to think we should help her financialy.
    She claims she will go to the CSA for her maintenance if i dont increase my payments.
    Can she do this as it states on the consent order that i have to pay what was agreed which i have done on time every time.

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  75. If the child maintenance order was made after April 2003 then either party can apply to the CSA after 12 months have elapsed from the date of the order.

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  76. Hi John,
    After years of battling it out with my ex husband and back and forth through the courts, i was made an offer by him and we decided to settle out of court. prior to this agreement, he declared that his ltd company went into liquidation, and he has personal debts. We agreed that he pay me a lump sum and I transfer my interest in all properties over to him.(no outstanding mortgage on properties.He pays me my share and remorgages to buy me out). We agreed I would not be liable for any of the debts incurred.
    My solicitor wrote up the consent order but then changed her mind about sending it off to his solicitor and said that the judge would not order it without an aproving letter from the liquidators. My ex has already agreed to take liability for all debts and says the Ltd company is in liquidaion which has nothing to do with his personal assets.
    I feel I am stuck in the middle of all this and have asked my ex to draft up a consent order with his solicitor to present to the court. Do I need my solicitor to sign anything? Do I need her at all, for I feel she is prolonging the case and has been doing so for quite some time.
    Thankyou.

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  77. You do not have to have a solicitor at all, but I would certainly recommend that you take legal advice regarding the wording of any order. If you are not happy with your present solicitor, there is nothing to stop you instructing another one.

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  78. It asks on the CSA calculator how many nights on average i have the children stop with me.
    Some times i collect the children from school they stop at my house then i return them to their mothers on my way to work at 7:30 next morning.
    She says that does not count as a night because i did not have them for 24 hours. Is she right or just being the usual pain?

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  79. The regulations refer to 'overnight', not all day.

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  80. I got divorced in 2006. My ex husband was the petitioner. In the ancillary relief section all the points regarding lump ect were crossed out and signed by him. (I have a copy) Does this mean that the divorce was a 'clean break'? I.e he cannot try and claim anything from me in the future as stated on the Ancillary relief. Also, he has now remarried. Thanks for any advice given.

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  81. It does not mean there was a clean break, but if he has remarried without making any ancillary relief claims, then he cannot make those claims now.

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  82. Thanks for such a quick response. One more question, does that still stand with him not making any claims even he gets another divorce?

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  83. Hi John,

    I can't believe he can try and make a claim even he divorces again. This is where I am confused.

    My final Decree Absolut/Decree Nisi does state that he was not claiming anything from the Ancillary relief. So why is it that he can still claim if he divorces again if the Ancillary Relief shows that I wouldn't be entitled to his pension (not that I'm interested) or that he wanted a lump sum, assets to be split, as he took all of his belongings et.... I'm confused, I thought the Ancillary relief at the time of the divorce was final.

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  84. Hi John,

    Please ignore my last comments, I was getting confused and now realise that he cannot make a claim if he gets divorced from his 2nd wife.

    Thankyou so much for the patience and time you have put in with answering my questions. You are a diamond! x

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  85. Hi John, I will keep this as short as possible. The copying of ex's P60 to myself yearly is in the consent order. I have to ask for it each time, but this year after 3 requests still nothing forthcoming. What are my options in enforcing this please?
    Jen

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  86. If he is in breach of the order then there are steps that you can take to enforce the order, but I'm afraid I cannot explain them here. I would suggest that you consult a solicitor - a strongly worded solicitor's letter usually has the desired effect in these circumstances.

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  87. Thank you for such a prompt reply John, it is much appreciated :). I will do as you suggest.
    Jen

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  88. Hi, i live in the fmh with 3 of the 4 children from the marriage, the youngest of whom (17) is disabled and not likely to ever be independant. i am self employed earning very little as i care for him. Ex doesnt work due to illness, lives in paid for social housing, csa only grants me £5 a week for youngest. Ex holds 2 large joint pensions, fmh has no mortgage. I am divorcing him on 5yrs separation, going for a clean break settlement, whereby i keep house, he keeps pensions - how likely is a court to grant this, as i will likely get into considerable debt funding court action? is it worth it? i dont qualify for legal aid.

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  89. Hi Debs,

    I'm afraid I could not possibly answer that here, even if I was able to give specific advice, which I am not (I am no longer practising). I would expect that the court would want you to take some advice anyway. At the very least, you should see a solicitor on a free or fixed-fee interview (usually something like £50 for half an hour) - they should be able to give you an indication. Make sure you take details of all assets and their values (you will need cash equivalent transfer valuations from your husband's pension providers) with you to the interview.

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  90. Hi John,
    I wrote to you on Sept 30th re-court order where my ex has to pay maintenance for our son until his 17th birthday which is next April, but he stopped paying after August of this year. I sought legal advice and after 2 letters telling him he must pay, he still refuses. My solicitor says I can apply to the court but this will cost me £80 and he may still refuse to pay. If this is the case then it could go on and cost more than it's worth. Do I have any other options as this is already costing me money I did not wish to spend as also I know he will refuse to pay any costs. All I want is for him to honour the court order, is it really that difficult?

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  91. I'm afraid I can't give specific advice - you should discuss the enforcement options with your solicitor. For general advice, see my Wiki, here.

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  92. Hi
    I seperated from my wife 18 months ago but divorce has only come though now. We have reached an agreement regarding finances and now need to apply for consent order. However i just wanted to know what are the possible implications of me stating on the Statement of Information form that i indend remarrying? Could this prejudice me in any way?

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  93. Remarriage can have a bearing upon the settlement, but I'm afraid I couldn't possibly advise you here as to whether it would prejudice you. I recommend that you consult a solicitor before the order is filed, although if it is your intention to remarry then you must state this.

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  94. My husband of 28 years suddenly deserted me and moved permanently to Spain to live with a short-term girlfriend. We have agreed on a finance split and are doing a consent order (not so much to fight about).

    Since he now lives abroad, I am aware that, although he will probably pay the agreed lump sum, there is little I could do if he doesn't. I guess it's easier to defy a court order after moving abroad.

    I'll have to try to delay the decree absolute, if the lump sum isn't handed over by six weeks after the nisi. I understand that the petitioner can apply to the court to delay the decree absolute, if they have good reason and I do. I know you can't give specific advice, but what is this application called?

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  95. There is no need for any such application - the decree absolute is not automatic. However, the consent order will not take effect until decree absolute - I therefore recommend you seek legal advice.

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  96. I am in a bitter dispute with my ex-husband at the moment and the only asset is an industrial estate. He is in control of the estate and had it valued. The valuation is very low and this is what he wanted as he hopes to buy me out. I have been arguing for the right to my own valuation, but his solicitor is fighting it. Surely if the entire settlement is going to be based on the valuation I should by right be allowed a second valuation.

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  97. You will need to ask the court for a direction as to its valuation.

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  98. By asking the court for a direction as to the valution, do you mean the court will decide whether I have a right to a valuation, or that the court will choose a valuer and arrange a valuation? I was under the impression that once one party has obtained a private valuation (with a valuer of their choice) it was normal for the other party to obtain their own private valuation with their valuer.

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  99. The court will not proceed on one party's valuation alone. If the parties cannot agree a valuation then the court will deal with the matter, usually either by ordering that each party obtain their own valuation, or that there be one joint valuation, with both parties being bound by it. The court will specify the valuer(s), based upon the wishes of the parties.

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  100. Hi John

    I have a joint mortgage and joint second charge with my husband, current property value means we are in negative equity (approx £12k). I remain in the MH. In return for me taking on the debt we have agreed he will waive any interest in the property. There are no children of the marriage. We received our nisi in Nov 09.

    Whilst I would like to remove his name from the mortgage I am not currently able to remortgage and my mortgage company may refuse a transfer of equity. If so, is there a specific legal term to include in the consent order to make our intentions legally binding even though the property has not been officially transferred to me? Do you think the court is likely to agree such an order?

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  101. That can be achieved, but I'm afraid I couldn't tell you how to do it here - you will need to instruct a solicitor to draft the order. In any event, I would strongly recommend that you take legal advice before proceeding.

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  102. OK, at 104 comments, I think this post has gone on long enough. I have helped as many people as I can, as much as I can, so I don't think there can be any complaints. Accordingly:

    SORRY, BUT THIS POST IS NOW CLOSED - I WILL NOT THEREFORE BE REPLYING TO ANY MORE COMMENTS ON THIS POST. THANK YOU.

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