Advice on chances of a clean break?

My H divorced 6 years ago, Consent Order about to expire, and we really want a Clean Break re: spousal maintenance based on 1. she is now working, albeit part-time although we have offered additional childcare if she wants to work full-time 2. she is supposed to have sold the house and released the huge equity to buy somewhere smaller outright, releasing my H from mortgage obligation but has failed to do so, 3. she is co-habiting with a guy (for 2+ years now) who is also working and who got £70k out of his ex as he was masquerading as a househusband 4. she has endowments to mature that cover her pension requirements. She got the house, my H got the pension at divorce. We will of course continue to pay child support for two kids, 15 and 9.

Does anyone have any ideas on our chances of getting a Clean Break, or at least a £1 a year ruling? Or are we just going to have to pay this woman for the rest of time? She currently receives £3k inc £1000 in child maintanence monthly, it is killing us. Her total household income is now topping £6k net per month!! Yes, and all of us workers are paying her too, she receives £500 a month in tax credits since they dont take account of her partner's income or her maintenance. She is only 40 and the marriage lasted 13 years. If anyone has any knowledge of this sort of thing, I would be very grateful.

Quite honestly, I could not advise you without knowing the terms of the Consent Order, and I think it would probably have to be scrutinised rather closely.

What exactly did the order say about the house ? It would not be unusual for a sale to trigger a division of the proceeds. Is this so in your case ? Was there an express provision in the order for the wife to sell and re-invest in another property ? What safeguards did the order contain to safeguard the interest of the dispossessed spouse ? It is important to know.

As regards spousal maintenance, well you can always apply for a variation ( as can she ) but I need to stress, madam, that the court will look at the whole matter afresh, so that it is possible, for example, to apply for a reduction and get an increase ; or apply for an increase and get a reduction. So in practice you need some hard evidence of the wife's means, but if your finances are under strain as they seem to be, then an application is worth considering. There is no point in making a spousal maintenance order which cannot be paid without causing grave hardship. You cannot get blood out of a stone.

If you want to send a PM, please feel free, but it does sound a wee bit complicated and you will probably need some pretty good legal advice sooner or later.

Mike 100468

Thanks Mike, it is rather complex (isnt everyone's). The Consent Order stated she had to use her "best endeavours" to release my H from the mortgage. There was nothing in the consent order to protect my H if she did not do this. The best situation is for her to sell up, buy a slightly smaller house and be mortgage free, or put in her partner's equity and have a very small mortgage in her own name. There is no lien on the house that might benefit us. We have had two quotes on challenging/varying the consent order, both around £15k. We simply do not have the money at the moment, the last wee thing cost us £2k for some no brainer work. We would not eat without my contribution. My H is a high earner, but he was given some rubbish advice originally. Having said that, at least because he was paying a bit in excess of CSA she hasn't been able to come back to get more over the years. We met and married subsequent to his separation, not that it matters, but my contribution was not in the original equation.

' Use her best endeavours ' to my mind suggests that your former marital home was in joint names, and she had the right to live there, possibly while the children were still dependent, perhaps longer. You say she ' got the house ' - does this mean an outright transfer ? This means that your husband's name is probably still on the mortgage, which would, I guess, prevent him getting another one. Unfortunately for you, the decision as to whether to release your husband is entirely that of the lender, and the Court can't order the lender to release him. For that to happen the lender would have to be satisfied that the wife could meet her obligations without support from your husband. Unfortunately so much of her income consists of maintenance , and not all lenders take maintenance into account. So all the Court can do is to ask the wife to try. It doesn't, I'm afraid, mean she has to sell the house, and a sale could possibly trigger off a division of the proceeds, depending on how the Consent Order is worded.

What do you mean when you say, the Consent Order is about to expire ? Child support of course has a built in termination date ; what about spousal maintenance ? Has the Court fixed a date when the payments are to cease ?

The difficulty is, madam, as I'm sure you have realised, that when former spouses have gone their separate ways, over time they tend to lose touch and it becomes difficult to work out whether an application for variation has a realistic chance of success, and it may be a factor which will lead you to bear the evils that you have than fly to others that you know not of, to quote Hamlet. The difficulty is that an application for variation can rebound on the party who makes it,and £15K is a hell of a gamble.

I can only stress that no solicitor could advise you on the chances of success of a variation application without seeing the Consent Order. My feeling is that if you are paying £1000 per month child support, that means your husband's income will be in the region of £5000 a month and you are paying £3000 of that - 60% of his net salary. That seems a very severe order if your husband's ex got the house outright, as opposed to a deferred sale. I would have expected a countervailing reduction in the spousal maintenance ; the disparity in your incomes seems quite large even if she does have two extra mouths to feed. But unfortunately, without knowing the full facts I can give no more than general
guidance, and a variation application is not without its risks.

Mike 100468

Thanks a lot Sir! The advice on approaching the lender to see what they could offer is really sound, and we hadn't actually thought of that. Just for anyone out there struggling with Consent Orders, here's a few suggestions based on our problems:

1. Argue for a time limit on releasing from mortgage obligations, or a right to go back and share in the equity uplift and make this explicit
2. Be as strong as you can on clauses on changes of circumstances (getting a job, salary increases, co-habitation, you name it). This is generally difficult legally anyway, but do your best! Life does change, even if you think you will never ever remarry or have another family.
3. Try to make agreements time limited and be wary of lots of "or further order" phrases, that means "X" has been decided until 2007, but the person can then come back for a second bite at the cherry.
4. Be clear about clauses about the use of bonuses or commissions from work if that is applicable to your situation, and avoid generalities like "to benefit the children". Your ex-spouse can argue a holiday for themselves abroad benefits the kids due to reduced stress! I am not joking. Have that type of money be put into an educational trust or something.
5. Be careful about phrasing (again think about time limiting or change of cirucmstance) that might allow your ex to claim on your estate. We have had to take out extra insurance cover as a result of sloppy phrasing on this.

I know this is maybe sounds one sided, but I do think even women who need and totally deserve spousal maintenance are more protected with clarity in a Consent Order. Our experience is anything unclear or a seemingly endless ongoing financial relationship just builds anger and resentments and kids can get affected, even if that is the last thing you or your ex-partner would want. I do wonder if lawyers prefer clouding the waters to keep an income flowing for them way into your divorced future...

Many thanks again Mike.