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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


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  • LittleMrMike
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16 Jun 07 #824 by LittleMrMike
Topic started by LittleMrMike
Although this is not an immediate issue for me, I would be interested to have some views, especially from the wikivorce team. I am not necessarily seeking advice - just views on the whole issue of maintenance orders with no time limit.

I have been paying maintenance to my ex wife for 24 years for a marriage which lasted 15. The order is in the usual form, payable till death or re-marriage, the usual. My ex developed schizophrenia which was the cause of the breakdown. She is totally blameless for this, and we have managed to stay friends. She is in a home for adults with mental illness, and regrettably will be there the rest of her life. At the moment I believe she is able to meet her fees in full by running down capital. Sooner or later she will be reduced to the £12500 which she is allowed to keep. At that point any shortfall would be made good by the public purse. In other words, I will, in effect, be subsiding the local authority, not my ex..

I was interested to note in the House of Lords decision in the McFarlane case that, having gone to great lengths to say why lifelong orders are undesirable, they went on to do precisely that, ( coupled with a pious hope that it might not necessarily be for life ) and I seem to recall reading on this site that open ended orders are now flavour of the month with District Judges. I'd be quite interested to know what evidence there is for this statement..

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17 Jun 07 #834 by Louise11
Reply from Louise11
Hi Mike,
I really dont know the answer to this one. YET! But trust me i am going to scour the internet and have a read around!
I just wanted you to know that i have read your post and i have not forgotten it, im just looking into it.
I dont like it when no answers are on posts (like mine sometimes! lol) but i think its because half the time noone knows the answer! Or they are not as far down the line as some people.
Kind ones
Louise11 :)

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17 Jun 07 #835 by LittleMrMike
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Hi Louise

Bless you for making the offer, but I can assure you I have researched this to destruction, and as far as my own case is concerned, I do not know the answer, and my solicitor doesn't either. For the moment, I intend to leave things as they are.

I am a little bit more concerned about general principles. The Government is planning legislation to give greater rights to cohabiting couples, which will include the power to award maintenance. However the indications are that maintenance will probably be limited to a few years. If lifetime orders become the norm for married couples, the contrast will be obvious. In any event I am not sure whether it is reasonable to impose on a spouse who has been married 10 years a liability to pay maintenance to the other for the next 40.. But I do feel strongly, that this is a matter for our elected Parliament to decide - NOT judges.

Thanks for your help as always
Mike

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21 Jun 07 #906 by Louise11
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Hi Mike,

I have just had a thought something i'd forgotten,

My mum met a fella some 34 years ago and they have been together ever since,he has had to pay spousal maintenance, and child maintenance to his former wife, for the past 27 years as at the time they divorced she never worked and has never worked since, they had 5 children together (but i dont know how long they were married)in all that time she refused to allow him to see his children. Anyway the child maintenance he paid eventually stopped because the children all became of age. However the SM never stopped, he challenged this with 2 solicitors over the years but both said nothing could be done and it was best he kept quiet otherwise she could probably take him back to court and receive more! Anyway some 6 years ago he had heard she died, so he stopped paying it.
He has since found out he should never of been paying it, the reason he thought he had to pay was at the first hearing he was ordered to pay interim maintenance until everything was sorted at the divorce. He has since found out the Judge never ordered SM at the finish, but the interim payments never stopped.
How mad is that? he has paid over 80k over 27 years, she kept the house and lived on benefits plus his SM payments.
I used to argue with him all the time when i was living with my mum and him, even me at 18/19 plus used to think it was unfair, i had a bit of the terrier in me then! lol it was me who made him go see a solicitor because i couldnt believe a man would have to pay his ex wife for ever! How right was I?
He has since been told...He should of just stopped paying it! Nothing would of ever of come of it because it was never ordered. But most people dare'nt challenge anything. i dont beleive you should also be held responsible for your ex for the rest of your or her life. Its not fair. Only you know what the order said or why you feel you should continue, but me? i would challenge it every step of the way.

Kind Regards
Louise

P.S. you have put me on a mission! lol and i will return to you.

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21 Jun 07 #908 by LittleMrMike
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Dear Louise,

Thanks for your consideration and for taking the trouble to reply. Well, of course I agree with you that it is not very fair. It was nobody's fault that my ex is mentally ill. But I am not sure whether the underlying idea behind our divorce laws is not fairness, but expediency - a desire to transfer the cost of supporting ex-spouses away from the Exchequer and on to the former spouse. A form of stealth tax, if you like.

It may be that someone will read this post who is in the same boat as me. I am writing what follows in the hope it may benefit them.

There are some people whose spouses are in residential care and who have been forced to contribute towards their fees under the ' liable relative ' provisions in the National Assistance Act 1948. If that sounds like you, be aware that the Government was supposed to be repealing this rule, which means that your liability should cease, but knowing local authorities, some of them might be happy to leave you in the dark. If this sounds like you, please get back to me and I will tell you more. It does not help me because I am contributing through spousal maintenance and not as a liable relative. Of course it does mean that if I had still been married, I could no longer be required to pay, but as an ex spouse I can be, and am being, forced to cough up because we lived together 24 years ago.

There is a limited line of authority, not very recent, which suggests that where you have a situation where the husband is paying SM, but it doesn't benefit the wife because the SM is lower than she would get on social security, so that the husband is, in effect, contributing towards the wife's benefits, then the proper course is to make an order but limit it to a definite period. Such an order, it was said, preserves the principle that a husband cannot transfer his liabilities to the taxpayer , but does give the payer some light at the end of the tunnel.

The problem is that there is more recent, and much higher, authority in the case of McFarlane. In that case the husband was a high flying accountant and the Court of Appeal had ordered maintenance of £250K per annum for five years. The wife asked for this limit to be removed and succeeded. The House of Lords thought that five years was too short a period, but did not make 10, 15 or any other term ; the order was open ended, which did not necessarily mean it was for life. Baroness Hale did observe that she could not expect to receive this level of provision for the whole of her life, but in one sense that was stating the obvious ; sooner or later the husband would retire and then the maintenance would be reduced. From my point of view this is a bad precedent.

At the end of the day, it is an issue of balancing what you might stand to gain against the risks that the Court might review the order. These were my conclusions and I hope they may help someone, if not me.

Mike

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