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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


Consent Order, altering payments?

  • alreadydivorced
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04 Sep 12 #353713 by alreadydivorced
Topic started by alreadydivorced
Hi peeps!
I`m confused and after a fairly rigorous search, haven`t found clarification, so here goes:

There is a Consent/Court Order for child maintenance, over a year old now. The parent-without-residence (PWR) believes that these payments can be varied depending on their salary (always downwards, however!). The PWR claims (maybe correctly) that their salary has decreased thus they only have to pay 25% of the current salary as per the CSA stuff (three children, income over the basic levels). The parent-with-residence believes that the court order states a fixed sum and that until/unless a CSA assessment is made these payments should be adhered to. The parent-with-residence concludes that there are now arrears due to the reduction in payments and that these arrears will accrue to a noticeable sum over the course of time. Who is right?

The relevant part of the order states that the child maintenance payments should be made, to the appropriate age for each child "at the rate of x£ per month to reduce in accordance with the CSA Regulations". The last bit was written in as the PWR wanted to reduce payments by a third as each child attained the age of independence; the legals said that the CSA formula differs in percentage reductions.

I suppose I`m asking essentially whether the Consented Court Order stays in place after the year is up and if it has to be actively altered by a CSA ruling?


Sorry if this a little hard to decipher; trying to keep it anonymous! Hope someone can reliably advise.

  • TBagpuss
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04 Sep 12 #353797 by TBagpuss
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yes, the order remains in place until revoked by the making of a CSA assessment.

However, if you apply to enforce, the other parent can refer to the CSA triggering that new assessment. In addition, if the wording specifices "reducing in accordance with CSA reggualtions" not "reducing in line wth the CSA guidelines as each child leaves school or turns 19, whicher is earlier" (or words to that effect) it could be argued that reducing the payments because the paying parent''s income has dropped *is* in accordance with the order.

You can apply to enforce the order and to seek arrears to date,but a court may decide that it is not reasonable to expoect him to pay over the CSA level of maintenace and any arrears are likely to be limited (generally, it is expected that if someone seeks to enforce and agreement ior order, that they should do so within a reasonable time of becoming aware of the breach, so if you apply now, you might be able to recover the arrears for (say) the last 6 months, but might struggle to convince a Judge that it was reasonable for you to recover older arrears if you have not previously made any attempt to do so.)

  • alreadydivorced
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04 Sep 12 #353814 by alreadydivorced
Reply from alreadydivorced
Thanks for that; very helpful Arrears only three months to date....Must research CSA assessments, then.

  • Child Maintenance Options
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07 Sep 12 #354428 by Child Maintenance Options
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Hi

Thanks for your post.

Where both parents agree on the level of child maintenance (most commonly reached through discussions with third party support such as mediators and collaborative family solicitors) and they apply to the court to turn it into a Consent Order.

Parents agree a figure, usually with the help of a third party and then the court decides if the amount looks fair and reasonable, all parties will consider the child support formula in deciding what amount is reasonable.

Once an agreement has been converted into a Consent Order then the non-resident parent is legally liable to pay the amount the court has endorsed. However, the court does not monitor or collect payments so the parent with care will have to monitor payments and get legal advice around non-payment unless they are happy to accept reduced payments.

A Consent Order can be adjusted but to do this either parent will need to seek further legal advice then, most commonly, go back to the court, set out the application on a standard form and pay a fee to the court. The court will then consider any change to the original consent order.

If parents have a Consent Order and then decide they would prefer to use the CSA they are not legally able to change over unless the Consent Order has been in place for at least 12 months. After 12 months either party can then apply to the CSA and the Consent Order will no longer be valid.

If parents have a Consent Order that dates back to before April 2003 then they are not allowed by law to change over to the CSA at all. Only the courts have the ability to sort out child maintenance in such circumstances.

  • alreadydivorced
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07 Sep 12 #354449 by alreadydivorced
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Thank you for that information; very helpful. So payments shouldn`t be reduced without either CSA or the Court ruling on them, without the consent of both parties? This on an agreement reached after 2003.

Can the Consent Order be adjusted by the Court after one year has passed?

After one year, will the Courts enforce compliance with the Consent Order? If applying to the Court to get payment enforced, would this involve looking again at the financial circumstances of both parties or would it only involve enforcement of payments and any adjustments would be a separate issue perhaps under a separate application?

Sorry for so many questions; its hard to get these things straight sometimes. And thanks in advance for any reliable information!

  • Fiona
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07 Sep 12 #354483 by Fiona
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When a child maintenance agreement is included in a Consent Order the payer is liable to pay the amount stipulated in the order, and arrears can be enforced like any other debt until the order ceases to have any effect.

If after one year the circumstances change and both parties agree to a change it can be documented as another Consent Order. Alternatively either party can apply to the CSA and the original consent order will cease to have any effect with regard to child maintenance.

So to answer your questions. As long as the Consent Order is in effect the courts can enforce arrears after 12 months of the order. However, normally you can''t apply to enforce arrears that are more than 12 months old. The courts won''t make an order for a debtor to pay if that leaves them living below a subsistence level.

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07 Sep 12 #354486 by alreadydivorced
Reply from alreadydivorced
Thanks, I was just reading a really old post by you and there you were answering mine!

Ummm I seem to be thinking along the registration at the magistrates court lines but I am also finding a lot about attachment of earnings orders. Confused. Is the magistrates court registration the opening shot and the attachment order the heavy guns?

Payment has lessened rather than stopped. Does this affect the method of enforcement?

No subsistence level scenario here, at least not for the supposed payer of the maintenance.

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