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Interest clause

  • Easteregg
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02 Aug 12 #346831 by Easteregg
Topic started by Easteregg
Please can anyone advise regarding an interest clause on Consent Order.
When myself and my stbx went to our first FDR, the two barristers agreed a settlement figure and a clause was included in the Consent Order about interest to be added on should my stbx be late in arranging the transfer of payment. The judge agreed everything and congratulated us on agreeing everything with the help of barristers prior to going into the chambers, but he wanted my stbx to confirm to the court that he could raise the small amount of ''extra'' cash, and therefore wouldn''t approve the order until my stbx informed the court that he could raise the extra. Now my stbx''s solicitor is refusing to agree to the interest clause being in the order. How important is this clause, is it worth agreeing to omit it, or should I insist it is put in the order? Thank you so much for your help.

  • hadenoughnow
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02 Aug 12 #346907 by hadenoughnow
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Is there a time limit on the payment?

I can see how it would be sensible to have the interest clause if the payment can be delayed indefinitely but not if there is a clear deadline. Presumably if there is a deadline that is not met, you could apply to the courts for enforcement.

You need to weigh up whether any potential gains/losses from having/not having the clause are worth the money it may well cost to argue about it - including letters backwards and forwards and a re-visit to the court with representatives etc.

Hadenoughnow

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02 Aug 12 #346951 by Easteregg
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Thank you, there is a 56 day time limit, but I would be surprised if he stuck to that. I can''t see why he wants the interest clause removed if he intends to pay up on time!

  • .Charles
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06 Aug 12 #347602 by .Charles
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The difficulty with the interest clause being deleted is that enforcement by application to the court is the only option.

An an example, currently if your husband was late in paying, the onus would be on him to comply with the terms of the order as the more time slips by the more interest accrues.

If the interest clause was removed, the onus would be on you to enforce the terms of the order as you are losing out the moment the payment date is exceeded.

If the agreement was made at court with the 56 day timescale, your husband was confirming his ability to meet that deadline. By seeking to remove the interest clause he is almost telling you that he intends to breach the order isn''t he? If not, the interest clause makes no difference as he will pay in time, won''t he?

Charles

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06 Aug 12 #347689 by Easteregg
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Thank you Charles, that is exactly what I was thinking, but my solicitor keeps telling me just to forget the interest clause, and if he fails to pay up on time, we will apply to the court for them to enforce the order. This will just take more time I feel. We are due back in court at the end of this month, I feel we should go back and let him tell the judge why he wants to exclude the interest clause. After all, his barrister agreed to it at the first hearing. Thank you so much

  • soulruler
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06 Aug 12 #347691 by soulruler
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Currently debts arrising from family proceedings are provable debts and therefore are subject to an interest charge of 8% flat (which is a daily calculated rate of added interest).

So I agree with Charles that it would be stupid to allow it to be omitted and also it is a huge red flag as he is now refusing to agree to it.

Once the 56 period of complience is up and if he fails to pay then he is in contempt of court and you need to write to him to let him know this and also make sure that your solicitors apply into court as soon as he breaches (if he does) for enforcement.

I wish I knew that myself now instead of following pretty useless and incompetent legal advice.

I think that if I had been told that I would have avoided 3 extra years of agony following on from my final hearing in Ancillary Relief.

I think you need to write a letter to your solicitors reminding them of their duty of care to you as their client.

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07 Aug 12 #347798 by Easteregg
Reply from Easteregg
Thank you for your help, my solicitor says that as they are preparing the paperwork for the transfer the interest clause can be omitted, I have disagreed with him and asked him to write last week to the stbx solicitor informing them that I wont agree to it being omitted, and therefore will go back to court in two weeks and see what the judge says. Just worried that the judge will tell me I am wrong.

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