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advice pls re next action

  • Rodney
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14 Nov 07 #6692 by Rodney
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I am enquiring on behalf of a friend re her child maintenancefor her three daughters.
In disquieting circumstances in 1993 she decided that she had to leave for her own safety and well being with her three daughters aged 7,5 and 2. She left the marital home with nothing.
She subsequently received one third of the equity of the marital home, more than two years later, because,her ex husband said, that’s all he could afford at that time; she had contributed all of the deposit and paid the mortgage from her own salary on their first property and the mortgage for their second property for four years until their children arrived.
She received no maintenance for 4 years until finally receiving £250 per month for all three daughters.
She re-married in 2003 and has two young sons from this marriage. Her current husband pays maintenance for 1 child from his previous marriage.
Her children are now aged 19,17 and 14 and are all still in full-time education. Her ex has recently reduced his payments to £200 per month. He sees his children for less than 52 days of the year and he has re-married and has one young child and is expecting another.
At the time of the separation the mother was traumatised by the actions of her former husband and felt unable to seek help for a fair settlement.
Advice please. Although a voluntary agreement the former husband has admitted in the past that he has got off lightly. What course of action is open for the mother to claim:

1. satisfactory current payments and
2. seek compensation for inadequate past payments.

I believe it is possible for her to go to the CSA. Is this the best course of action or knowing they would take action, for her to use this as a stick to encourage her ex to come to a sensible arrangement regards points 1, 2 or both?

thx in anticipation of any help.

  • attilladahun
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15 Nov 07 #6696 by attilladahun
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One thing that should be considered it is the distinct possibility that she could still pursue a claim against her ex-husband for ancillary relief. It does not seem that a financial claims were finalised and settled by order of the court and, if so, she is not precluded by making such claim. In the case named Twinname a lady pursued a claim a couple of decades after the parties is separated and divorced.

clearly, the court will consider all the matters set out in section 25 of the Matrimonial Courses Act 1973 and clearly post separation assets may to certain extent not be so relevant.

It may therefore be she did not take into account the facts of the divorce at the time on all assets e.g. pensions. Clearly, if the divorce commenced in 1993 the court would not have been competent at that stage to consider a pension sharing order, however, she may be compensated for pension losses by payment of a lump sum by way of a pensions offset order.

in relation to the children the eldest child may possibly obtain legal aid and pursue directly the father for maintenance.

schedule one of the children act 1989 also gives the court powers to make lump-sum orders for the children. Not forget that if the children have a special need e.g. dyslexia the court may well make payments for specialist software all in particular a laptop to assist studies.

CSA payments will of course be very much calculated in accordance with the strict formula and you can access a calculator on the CSA works site. If contact overnight is the less than 52 days the 1/7 discount will not apply.

obtaining a lump sum for maintenance payments have not been previously made is not essentially the right way to pursue matters. This does not go mean the court is not able to consider a lump sum payment and an example of where a lump sum payment may be justifiable would be to meet a reasonable capital need e.g. the new furniture all the child or other similar expenditure.

You mention there was a voluntary agreement-- needs to be amplified. With their proper and full disclosure when the agreement was reached and did the parties have independent legal advice?

please remember the contract does not usually play a part in matrimonial proceedings as the court always retains the right to approve whether a settlement is fair and reasonable.the reason for this is because some parties to the marriage are put under undue pressure.

I personally would first of all consider whether or not you could still pursue a claim for ancillary relief if the settlement was not very reasonable. One would not expect any one third settlement at all fair especially if the mother had dependent children.

Clearly the ex-husband appears to have other mouths to feed. Whilst he may be struggling to pay additional and meaningful income not told what the capital position of the parties is.

the court will of course have to consider the capital and income positions of all parties including the obligations of the ex-husband not only two the original family but also two his new family.

we are not old the age of the parties. If the settlement was not a Clean Break settlement possibility exists but if a lump sum may be received by the husband at the age of 50/55 when he could commute his pension provision a lump sumof equal to 25% of his pension provision may be of obtained that maybe a fund that could possibly be tapped into if a lump sum application were made either for the children and/or wife. The good thing aboutthat it is -it is a resource which could pursue which does not "cost" the ex-husband any additional income at present time.he is a potential source of capital but could be paid during due course party redress the balance. In essence, issuing received a one third settlement and should have received at least a half of the equity of the former matrimonial home one can see the wisdom in pursuing such a claim.

he is there any other additional fund had could be pursued for example an endowment policy which has some capital value.

the problem about pursuing merely CSA order periodical payments is the fact that the ex-husband will probably say he does not have any spare and liquid money to support the children of the former marriage, the ex-wife his new children.

it the payments made of £200 a month or less than that the detailed calculation the CSA would award then proceed with a CSA assessment. This, however, does not prevent you pursuing an uncertain relief claim if your rights to do so a still "open". By that I'm been whether there wasa Clean Break settlement achieved and approved by the court.

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15 Nov 07 #6697 by attilladahun
Reply from attilladahun
One thing that should be considered it is the distinct possibility that she could still pursue a claim against her ex-husband for ancillary relief. It does not seem that a financial claims were finalised and settled by order of the court and, if so, she is not precluded by making such claim. In the case named Twinname a lady pursued a claim a couple of decades after the parties is separated and divorced.

clearly, the court will consider all the matters set out in section 25 of the Matrimonial Courses Act 1973 and clearly post separation assets may to certain extent not be so relevant.

It may therefore be she did not take into account the facts of the divorce at the time on all assets e.g. pensions. Clearly, if the divorce commenced in 1993 the court would not have been competent at that stage to consider a pension sharing order, however, she may be compensated for pension losses by payment of a lump sum by way of a pensions offset order.

in relation to the children the eldest child may possibly obtain legal aid and pursue directly the father for maintenance.

schedule one of the children act 1989 also gives the court powers to make lump-sum orders for the children. Not forget that if the children have a special need e.g. dyslexia the court may well make payments for specialist software all in particular a laptop to assist studies.

CSA payments will of course be very much calculated in accordance with the strict formula and you can access a calculator on the CSA works site. If contact overnight is the less than 52 days the 1/7 discount will not apply.

obtaining a lump sum for maintenance payments have not been previously made is not essentially the right way to pursue matters. This does not go mean the court is not able to consider a lump sum payment and an example of where a lump sum payment may be justifiable would be to meet a reasonable capital need e.g. the new furniture all the child or other similar expenditure.

You mention there was a voluntary agreement-- needs to be amplified. With their proper and full disclosure when the agreement was reached and did the parties have independent legal advice?

please remember the contract does not usually play a part in matrimonial proceedings as the court always retains the right to approve whether a settlement is fair and reasonable.the reason for this is because some parties to the marriage are put under undue pressure.

I personally would first of all consider whether or not you could still pursue a claim for ancillary relief if the settlement was not very reasonable. One would not expect any one third settlement at all fair especially if the mother had dependent children.

Clearly the ex-husband appears to have other mouths to feed. Whilst he may be struggling to pay additional and meaningful income not told what the capital position of the parties is.

the court will of course have to consider the capital and income positions of all parties including the obligations of the ex-husband not only two the original family but also two his new family.

we are not old the age of the parties. If the settlement was not a Clean Break settlement possibility exists but if a lump sum may be received by the husband at the age of 50/55 when he could commute his pension provision a lump sumof equal to 25% of his pension provision may be of obtained that maybe a fund that could possibly be tapped into if a lump sum application were made either for the children and/or wife. The good thing aboutthat it is -it is a resource which could pursue which does not "cost" the ex-husband any additional income at present time.he is a potential source of capital but could be paid during due course party redress the balance. In essence, issuing received a one third settlement and should have received at least a half of the equity of the former matrimonial home one can see the wisdom in pursuing such a claim.

he is there any other additional fund had could be pursued for example an endowment policy which has some capital value.

the problem about pursuing merely CSA order periodical payments is the fact that the ex-husband will probably say he does not have any spare and liquid money to support the children of the former marriage, the ex-wife his new children.

it the payments made of £200 a month or less than that the detailed calculation the CSA would award then proceed with a CSA assessment. This, however, does not prevent you pursuing an uncertain relief claim if your rights to do so a still "open". By that I'm been whether there wasa Clean Break settlement achieved and approved by the court.

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15 Nov 07 #6698 by attilladahun
Reply from attilladahun
One thing that should be considered it is the distinct possibility that she could still pursue a claim against her ex-husband for ancillary relief. It does not seem that a financial claims were finalised and settled by order of the court and, if so, she is not precluded by making such claim. In the case named Twinname a lady pursued a claim a couple of decades after the parties is separated and divorced.

clearly, the court will consider all the matters set out in section 25 of the Matrimonial Courses Act 1973 and clearly post separation assets may to certain extent not be so relevant.

It may therefore be she did not take into account the facts of the divorce at the time on all assets e.g. pensions. Clearly, if the divorce commenced in 1993 the court would not have been competent at that stage to consider a pension sharing order, however, she may be compensated for pension losses by payment of a lump sum by way of a pensions offset order.

in relation to the children the eldest child may possibly obtain legal aid and pursue directly the father for maintenance.

schedule one of the children act 1989 also gives the court powers to make lump-sum orders for the children. Not forget that if the children have a special need e.g. dyslexia the court may well make payments for specialist software all in particular a laptop to assist studies.

CSA payments will of course be very much calculated in accordance with the strict formula and you can access a calculator on the CSA works site. If contact overnight is the less than 52 days the 1/7 discount will not apply.

obtaining a lump sum for maintenance payments have not been previously made is not essentially the right way to pursue matters. This does not go mean the court is not able to consider a lump sum payment and an example of where a lump sum payment may be justifiable would be to meet a reasonable capital need e.g. the new furniture all the child or other similar expenditure.

You mention there was a voluntary agreement-- needs to be amplified. With their proper and full disclosure when the agreement was reached and did the parties have independent legal advice?

please remember the contract does not usually play a part in matrimonial proceedings as the court always retains the right to approve whether a settlement is fair and reasonable.the reason for this is because some parties to the marriage are put under undue pressure.

I personally would first of all consider whether or not you could still pursue a claim for ancillary relief if the settlement was not very reasonable. One would not expect any one third settlement at all fair especially if the mother had dependent children.

Clearly the ex-husband appears to have other mouths to feed. Whilst he may be struggling to pay additional and meaningful income not told what the capital position of the parties is.

the court will of course have to consider the capital and income positions of all parties including the obligations of the ex-husband not only two the original family but also two his new family.

we are not old the age of the parties. If the settlement was not a Clean Break settlement possibility exists but if a lump sum may be received by the husband at the age of 50/55 when he could commute his pension provision a lump sumof equal to 25% of his pension provision may be of obtained that maybe a fund that could possibly be tapped into if a lump sum application were made either for the children and/or wife. The good thing aboutthat it is -it is a resource which could pursue which does not "cost" the ex-husband any additional income at present time.he is a potential source of capital but could be paid during due course party redress the balance. In essence, issuing received a one third settlement and should have received at least a half of the equity of the former matrimonial home one can see the wisdom in pursuing such a claim.

he is there any other additional fund had could be pursued for example an endowment policy which has some capital value.

the problem about pursuing merely CSA order periodical payments is the fact that the ex-husband will probably say he does not have any spare and liquid money to support the children of the former marriage, the ex-wife his new children.

it the payments made of £200 a month or less than that the detailed calculation the CSA would award then proceed with a CSA assessment. This, however, does not prevent you pursuing an uncertain relief claim if your rights to do so a still "open". By that I'm been whether there wasa Clean Break settlement achieved and approved by the court.

  • Fiona
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15 Nov 07 #6713 by Fiona
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I haven't read all the post above so I apologise in advance if there is some duplication in the following points..

1) Although by current standards receiving a third of the equity might appear unfair it wasn't necessarily at the time the agreement was made.

2) The CSA will only assess child support from the time they first write to the non-resident parent and they only deal with under 19s in full time non-advanced education, although in certain circumstances over 18s in education or training can apply to court for maintenance from a parent in their own right.

3) When someone is remarried they are barred from making an ancillary relief application, but there might be some redress through the courts if the voluntary agreement included maintenance and had been approved by the court.

  • Rodney
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16 Nov 07 #6788 by Rodney
Reply from Rodney
thx for your replies. Didnt think it was going to be good news but worth investigating because of the unjust nature of the first husbands behaviour.

thx again,
Rodney

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