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

01202 805020

Lines open: Monday to Friday 9am-5pm
Call for FREE expert advice & service info


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.


Do you need help going to court over a Financial Settlement?

Our consultant service offers expert advice and support for people who are going to court over a fair financial settlement, for less than a quarter of the cost of using a traditional high street solicitor.


A reneged Consent Order

  • geoffring
  • geoffring's Avatar Posted by
  • New Member
  • New Member
More
24 Dec 07 #9487 by geoffring
Topic started by geoffring
Hi,

As part of the divorce agreement, and prior to the Decree Absolute, my daughters ex signed over his share of his full equity to their house for £10,000. This transfer was conducted through her solicitor and her ex’s money paid to him through the same solicitor following the usual legal advice for him to consider. My daughter had the mortgage changed to her name and started paying it. The land registry showed the house was now in her name. In return, my daughter’s additional divorce agreement was that she would not cite his adultery as part of his unreasonable behaviour. She would pay for the divorce, pay for the Consent Order, pay for his transfer of equity on the house, not claim maintenance from him, as well as voluntarily not claim child support. (They have one 7yr old who lives with my daughter) Originally they had both agreed to a Consent Order to protect their interests and so one was drawn up. However, upon receipt of the Consent Order, which my daughter had already signed, her ex refused to sign it, returned it to her Solicitor saying he never intended to sign over his full equity for £10,000 and wanted another £30,000 before he would sign. As such, my daughter asked her solicitor not to reply to his demands and to apply for the Decree Absolute without the Consent Order. This her Solicitor did and the divorce was finalised in June this year: the judge presumably being satisfied with the financial arrangement and security of their son. In the mean time my daughter has stuck rigidly to her side of the agreement.

After threats by e-mail to take my daughter to court for the £30,000, which she refused to aknowledge, her ex more recently says in an e-mail to her ( which she has kept) that he now won’t be taking legal action and will now sign the Consent Order which was sent to him over 2 months ago via her solicitor. Her ex won’t be drawn into the reasons for his delay in returning it or whether he has signed it! She believes he has no intention of ever signing it. He is now living with a woman who he claims is the mother of a 3yr old child conceived by him during his act of adultery.

My Questions:-
After such a long period of time. Has her ex a legal obligation to now return the Consent Order back to her Solicitor, whether signed or not?

Can my daughter have the Consent Order sent to the divorce court for signing by a judge without her ex’s signature, as it was agreed in principal by him during the divorce agreement? Also we have it in e-mail writing that he had now agreed to sign it. - his exact wording being: - Please arrange to have the paperwork re sent from your sols and I will sign and return as soon as possible.

Finally, will this other child by the other woman now have any affect on the Consent Order? He made no claim for this position during the divorce agreement and settlement.

Many Thanks

Geoffring

  • LittleMrMike
  • LittleMrMike's Avatar
  • Platinum Member
  • Platinum Member
More
24 Dec 07 #9491 by LittleMrMike
Reply from LittleMrMike
I may have been eating too many mince pies, but in your opening sentence you say ' my daughter's ex signed over his share of his full equity in their house for £10,000' and you go on to say that ' the Land Registry showed that the house was in her name ' . Then you go on to say he refused to sign the Consent Order.

He would have a serious difficulty in trying to argue that a transfer which he voluntarily signed should be set aside, Consent Order or no - especially if both parties had access to independent legal advice.

Next - you may find that a judge will not sign off a Consent Order dismissing your daughter's claim for maintenance when there is a young child involved. Some judges are known to at least insist on a nominal order, which enables the issue of maintenance to be revived if your daughter's circumstances deteriorate.

In my view, any agreement on your daughter's part not to claim child maintenance is unenforceable and no judge will sign off a Consent Order incorporating a term like that.

In answer to your questions :

1. No, in my opinion, The ancillary relief issues arising out of the marriage are unresolved and will remain unresolved until there is a Court order, whether it is made by consent or otherwise.
2. No, in my opinion, Both of you have to send a completed form M1 to the Court.
3. Hard to say without knowing the circumstances, but I would say, yes, it could do. He is responsible for this child and therefore his needs are greater than they would otherwise be. This could ( at least in theory ) have a bearing on the issue of spousal maintenance, as could the fact that he has a new partner. By the way, if he has actually married her, that puts an end to any possibility of receiving maintenance. If this is so, then you need to ask for further advice.

Mike 100468

  • geoffring
  • geoffring's Avatar Posted by
  • New Member
  • New Member
More
26 Dec 07 #9519 by geoffring
Reply from geoffring
Hi Mike,

Thanks for your prompt and helpful reply.

Just one point which I perhaps did'nt make clear. My daughters agreement not to claim Child Support from the Child Surport Agency was only voluntarily and so was not mentioned in the divorce agreement. I accept that she can still claim if she wishes.

Her claim for waving personal maintenance from her ex was the only matter mentioned in the Divorce agreement and was as said in exchange for the him signing over the house for such a reduced sum of money. ( His total equity was about £60,000) but in any case had the case gone to court I believe that he would have been awarded only one third of the total ie £40,000, the other two thirds going to my daughter and their son. On top of that he might also have been required to pay her maintenance thus reducing further his over all gain. As such he walked away completely free of any financial responsibility to her.I assume therefor the judge was happy with this arrangement which is why the divorce absolute was granted.

Naturally with his claim to this other child he says is his? - and which he knew about at the time he signed over his equity to my daughter but showed no financial concern for - I accept does change the matter in respect of the Consent Order, but as he pays nothing to my daughter anyway, he obviously can't apply for reduced maintenance payments!!

My daughters main concern is that she might lose her house by a judge ordering her to sell up to pay him more of his equity, thus leaving her and their son at least temporarily homeless, whilst her ex enjoys the sanctity of this womans house he now lives in with his other alleged biological son. By the way, he is still looking for work??

As mentioned the deeds of the house are now in my daughters name - we checked with the Land Registry.

I know it all sounds a bit complicated but have you any further comments to make as a result of the above information?

kind regards

geoff

  • attilladahun
  • attilladahun's Avatar
  • Platinum Member
  • Platinum Member
More
26 Dec 07 #9540 by attilladahun
Reply from attilladahun
He would have to show there was a meaningul change of circumstances that were not foreseeable.......in this case I can't see there is any merit in his refusal to back out from agreement.

The case that deals with this is Xydhias v Xydhias

Need to prove:
1 The agreement
2 Party attempting to enforce has not attempted to resile from same
3 Court considers it is fair

Give O/S 14 days notice you intend to apply to the Court for the DJ to make an order as per agreement which both parties have acted upon.

Advise that if the application is made you will seek the costs OF & INCIDENTAL to the application for a Consent Order would only cost £30 consent order fee.
Suggest you will pay the solrs fees for prop of the Minute of Agreement + the Consent Order fee £30.....after 14 days a court fee of £80 will be payable and if DJ approves agreement the costs O/S will pay will be nearer £800 than £30 ...hit the dope in the pocket:)

  • attilladahun
  • attilladahun's Avatar
  • Platinum Member
  • Platinum Member
More
26 Dec 07 #9541 by attilladahun
Reply from attilladahun
Chapter and verse re concluded agreements here:

www.northampton-chambers.co.uk/newlawconcludedagreements.htm

  • LittleMrMike
  • LittleMrMike's Avatar
  • Platinum Member
  • Platinum Member
More
26 Dec 07 #9548 by LittleMrMike
Reply from LittleMrMike
I can only re-iterate what attilla has said, that your daughter's x2b would find it difficult to go back on an agreement made with the benefit of legal advice. If he wants to change his mind he would have to say why, and in the absence of fraud, misrepresentation, non-disclosure, or if the agreement was clearly unfair, I dont myself see how such an application would succeed.

My view is that he has probably changed his mind because he has been advised that he has little chance, and if anything the agreement is perhaps favourable to him.

I agree with attilla that the time is come when you need to take some decisive action, and hopefully just the threat of it will suffice.

Mike

Moderators: wikivorce teamrubytuesdaydukeyhadenoughnowTetsSheziLinda SheridanForsetiMitchumWhiteRoseLostboy67WYSPECIALBubblegum11