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Court won''t approve CM as it is percentage??

  • faithhope
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29 Apr 12 #327162 by faithhope
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Hi all

My ex-husband and I went to mediation to agree contact, maintenance and split of assets etc.

Our agreement was drawn up into a mediation agreement and the mediator advised us to have it drawn up into a Consent Order by a solicitor and then approved by the court.

The solicitor a drafted the Consent Order. We both signed it and then I submitted it to the court.

The court have refused it on 2 grounds.

1. The CM is expressed as 15% of ex-husbands income.

2.My right to remain in the FMH with ex''s equity tied up ceases on death or co-habitation (which we thought was a standard condition) .

I have sent the Consent Order back to the solicitor to look at. She hasn''t commented on the 2nd point but in relation to the first she says that we need to agree a figure rather than a percentage of my ex''s income. Herein lies the problem. He currently pays 15% of his income for our son which is £420 pm. He is being made redundant in August and I will then receive nothing until he finds another job. When he does he predicts it will be less than his current annual salary.

How can a court expect a person to commit a set amount for the next 13 years (our son is only 5) when he has no idea what he will be earning each year?? We thought (as did the mediator and solicitor) that 15% was a fair and sensible amount linked to his ability to pay.

I don''t know what to do next. I have paid alot of money to have the Consent Order drafted and submitted but it now seems it is worthless??

Any advice most appreciated.

Regards

Faithhope

  • sexysadie
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29 Apr 12 #327181 by sexysadie
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As your percentage CM is the same as that of the CSA, maybe you could put in the Consent Order that you agree to use the CSA calculator to calculate CM.

The CM in a Consent Order can in any case be superceded by a CSA application from twelve months after the date of the order, so it wouldn''t be the end of the world if you put the actual figure in for now.

Are you sure it is the percentage that the court is unhappy with? Might it be that you need to put in a mechanism by which he demonstrates his income, e.g. 15% as shown by the production of the last three payslips plus any bonus statement at a particular date annually?

Best wishes,
Sadie

  • Fiona
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29 Apr 12 #327191 by Fiona
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A flat rate of maintenance is preferred in a court order because otherwise there are too many loopholes to cause problems later. For example, how is income defined and verified, is the maintenance to be reviewed and if so how often, by whom etc etc?

  • LittleMrMike
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29 Apr 12 #327192 by LittleMrMike
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Well now, let''s see.
Payment of child support is a statutory obligation. If there is one child, it is set at 15% of the payer''s net income ( more or less ) but there are variations. For example, if your son stays 52-103 nights per year the maintenance is reduced by one seventh. So in that event 15% of net income would be too much.
If your ex loses his job, his maintenance liability will reduce , probably to £5 a week.
The 15% is also reduced in the case of payers with incomes between £100-£200 per week.
Furthermore, it is known that the formula will change. I don''t know when but the law is already on the statute book, it''s just a case of when it is implemented.
So in my opinion this was probably the reason why the Court rejected the clause - namely the probability that 15% will become out of date in the future.
So for all these reasons it would be wrong to put in a figure, in my opinion. I would just leave it to the CSA ( CMEC ) to work out the figure and if and when he loses his job the reduction will then automatically dealt with by the CSA, without the need for either of you having waste legal fees on having to go to Court.
I personally would have left this clause out altogether and rely on the CSA ( CMEC ) formula. Easier, and rather cheaper, I guess. But everyone on this forum knows about my views on the subject and now you do too !
As to the FMH, I don''t know. I suspect the answer may lie in the wording. In principle, there seems little wrong with the idea. What details you have given do not tell me how the equity is to be split up when the house is finally sold. So if it doesn''t contain that information that would be reason enough to reject it.
You mention cohabitation as a reason for triggering a sale but you don''t mention your re-marriage, which would be an even stronger reason. Not all judges like the idea of cohabitation triggering a sale, on the grounds that little Tommy still needs a home, and if Mummy gets herself a new boyfriend, it''s arguable that Tommy should not be without a home for reasons like this. You may have got that kind of judge. However if you can send me the exact wording of the order ( I don''t need to know the address ) I could be more intelligent.

LMM

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