A well respected, award winning social enterprise
Volunteer run - Government and charity funded
We help 50,000 people a year through divorce

01202 805020
Mon/Fri 9am-8pm       Sat/Sun 2pm-8pm
Call for FREE expert advice & service info

Threat to overturn a consent order - advice &views

  • john194235
  • john194235's Avatar Topic Author
  • Junior Boarder
  • Junior Boarder
More
6 months 4 weeks ago #511043 by john194235
Hi all,

I have had a rather extened divorce process and essentially its taken 3 years to get to a point where a consent order was agreed in court early October 2019 and issued by the Judge.

The details of the order were agreed by us both as litigants in person, we had no liquid cash left for solicitors.

The arrangements below were agreed by W & H over two days on a Final Hearing, sticky point in negotiations were the W did not want to sell the home. Judge advised that it would be sold if it got to point he ordered as there was sufficient equity to establish a clean break.

The details at a high level are:
1. House to be sold- 96% (£480k)to W / 4% (£20k)to husband (equity after cost of sales)
2. Three pensions valued at approx £174k - split £69k to W / £105k to H
3. Both cars to W value at £9k
4. Monthly global maintenance to W at £2300 per month till 2029 when youngest reaches 18

Three children all living with W with no overnight stays with F

W has no job, H has job & earns approx £95k.

Since October the house has been put on market, viewed , offered and sold for above the valuation presented in court. The solicitors have been instructed and started proceed with sale by both H & W. All forms to do with sale have been completed and returned early December to solicitors by both parties.

Chain is now chasing a move date, turns out W has not progressed or found alternative accomodation.

W has now indicated that does not want to proceed and is seeking counsel on the Order, to get it overturned.......

I am not after views on wether the W got a good deal or H got a bad deal, it was mutually agreed, although now obviously W is disagreeing!

As said the sticking point was the house being sold, and the judge advising that \"it must be sold\" as there needs to be a clean break and there is sufficient equity and the majority is going to the W to fulfil housing needs of the children.

I would like to understand peoples experiences of overturning orders,specifically:
a) is this something easily done?
b) if its started whats the likely cost?
c) whats the court process and whats the chance of the order being overturned?
d) would it go back to the judge that agreed the order?
e)any other sound advice before I visit a solicitor that I am sure I will not be able to afford for more than a couple of meetings....

Many thanks in advance.

J.

Please Log in or Create an account to join the conversation.

  • LittleMrMike
  • LittleMrMike's Avatar
  • Platinum Boarder
  • Platinum Boarder
More
6 months 4 weeks ago #511046 by LittleMrMike
As a matter of general principle :

1. It is not normally possible for the Court to discharge/overrule an order made by consent.
2. It's like appealing against a conviction when you pleaded guilty.
3. The only exception to this would normally be if one or both of the parties had given inaccurate information to the Court or failed to disclose material facts, ie something which would have influenced the Court's judgment had it known the full facts.
4. Did you get legal advice on the wording of the order ? I can tell you that the practice is that one of the parties has a draft order drawn up and sent to the other side's solicitors for approval.
Was this done ?
5. All I am going to say is that I would be surprised if a judge approved a draft order unless the parties had taken legal advice.
6. I'd say you needed some legal advice before trying to get the order varied.
LMM

Please Log in or Create an account to join the conversation.

  • .Charles
  • .Charles's Avatar
  • Platinum Boarder
  • Platinum Boarder
More
6 months 4 weeks ago #511051 by .Charles
It sounds like stalling tactics to me. If the chain collapses you'll have to start again which will add a few months or more to the process.

There is very little chance of setting aside/varying/appealing the order given that the majority of the liquid assets go to the wife.

However, if the wife refuses to sign the transfer (assuming the property is in both names) an application can be made for a judge to sign. If the wife refuses to move out that can will be a problem as nobody will exchange contracts until the wife is out (or worse, if contracts are exchanged the conveyance doesn't complete the purchasers will lose their 10% deposit and look to husband and wife to pay it).

Ideally the wife should move into rented accommodation if she hasn't found anywhere and when she has the completion monies she can find somewhere as a cash buyer.

Charles

Please Log in or Create an account to join the conversation.

  • john194235
  • john194235's Avatar Topic Author
  • Junior Boarder
  • Junior Boarder
More
6 months 4 weeks ago #511053 by john194235
Hi LittleMrMike,

Thanks for your response, no we were not given the oppotunity to seek legal advice by the judge, I assume that this was because it was a final hearing and we had turned up without any representation.

There was an open offer from H to W which is essentially where we ended up with a few small adjustments. The judge said that we should go away and discuss how we could reach agreement based upon that open offer, and if we could not reach agreement then at the end of the second day he would order a split based upon the information available to him which would be binding.

He called us back in just before lunch on the first day to see what progress we had made. It was at this point the W said that she would not sell the home, and essentially that was the sticking point between H & W. At this point the judge gave guidance that should we not reach agreement by the end of the next day he would order the house sold, so it was in both our best interest to reach agreement, he also stated that the open offer put forwards was more than generous and whe would not order to that extent, I assume as a push to get us to agree by ourselves.

We did agree by the end of the first day and the judge drew up the order and relayed it back to us, stating it was full and final, extremley explicit in this regard. We then hit a snag, which was who would pay the mortgage whilst the house was sold.H agreed to pay for three months whilst house was sold, this was then put in order. Judge asked H & W to come back the following day and he would then revise the order and asked us to bring addition paperwork for the pension split to enable this to be attached to the order.

So we did have overnight to essentialy digest, on the second day it was over in the morning, no objections, just clarifcations, form filling on pensions an then we went our seperate ways.

Essentially neither H or W ewas represented and therefore the District Judge was left to draw up the Order which was then recieved some weeks later.

Please Log in or Create an account to join the conversation.

  • john194235
  • john194235's Avatar Topic Author
  • Junior Boarder
  • Junior Boarder
More
6 months 4 weeks ago #511054 by john194235
Thanks Charles

I believe you are right that W is stalling, I think the intention is to get the chain to collapse therefore allowing W to stay in the house.

The complication as I see it is that it was agreed that mortgage would be paid for 3 months only by H.

What happens after that?

Order say parties to agree, but W refuse to respond H on any commiunications...........

I am getting the opinion from what I have read in other posts and from responses here that overturning an order is pretty difficult and needs to meet a particular criteria to even be heard at court?

The question is, does H try and enforce the sale through an order , or wait for W to apply to overturn?

Please Log in or Create an account to join the conversation.

  • WYSPECIAL
  • WYSPECIAL's Avatar
  • Moderator
  • Moderator
More
6 months 4 weeks ago #511063 by WYSPECIAL
She is highly unlikely to apply to overturn the order and even less likely to succeed.

As the judge said, she would have got less, not more, than what you were offering if it went down to him making the decision.

Will the maintenance you pay cover the mortgage? As you say the three months you agreed to is up and if you extend it on a voluntary basis she will have even less incentive to move.

Please Log in or Create an account to join the conversation.

  • alreid1612
  • alreid1612's Avatar
  • Expert Boarder
  • Expert Boarder
More
6 months 3 weeks ago #511071 by alreid1612
The variation of consent order is painful and expensive and I don't see any circumstances here to warrant it.
My partner's ex was pretty brutal when it came to selling the fmh. She had nowhere to go at the time either. An acceptable offer was received and his solicitors made it clear that should my partner's housing needs cause the purchase to fall through (ie she did not make them in time), he would hold her responsible for all costs etc arising. Not hugely pleasant for her but he had the financial clout to back up the threat in the Courts and it was not a risk worth taking for her. She moved.

Please Log in or Create an account to join the conversation.

Moderators: wikivorce teamrubytuesdaydukeyhadenoughnowTetsSheziLinda SheridanForsetiMitchumWhiteRoseLostboy67WYSPECIALBubblegum11