My husband and his ex wife made a private agreement that was written up as an application to vary an order sealed by the court a number of years ago. A copy was sent to the court. The judge has responded advising that a number of the terms are contrary to law (eg; restricts the right to apply to the CSA etc) and therefore are not enforceable. He also suggests that proper legal advice is sought and the proper variation process is followed.
The ex wife claims that if we do not continue to comply with all of the terms that she will take us to a civil court for enforcement. She completely refutes that it is a variation and believes that civil (contract) law applies rather than matrimonial law.
My understanding is that post dissolution agreements are either variations or, at a stretch, covered under s35 of the MCA.
Please can anyone advise whether something like this would be likely to remain in the family courts under the jurisdiction of matrimonial law or whether she could indeed take it to the Civil court?
Oops posted before answering, s35 deals with variation or discharge of joint lives orders in county or magistrates court, it has nothing to do with civil contract law, its the matrimonial causes act and it does what it says, deals with law of matrimonial matters.
thank you. this is exactly what we have been advised by our solicitor but the ex wife claims that it is a stand alone contract and that it should be dealt with in a civil law court. Her solicitors claim they are going to follow through with this.
Everyone we have spoken to is very confused, particularly as a judge in the family courts has already provided his remarks on it as a variation.
Depending on the exact terms of a written private agreement providing for CM *may* be enforced as a private debt through the small claims court. However, generally family law trumps over civil law and a variation is the correct procedure.
In family cases although an agreement is a contract it isn''t treated in the same way as a commercial contract. If there was full disclosure, both parties took legal advice and it is fair (i.e. complies with MCA1973 and other family law) an agreement has ‘a magnetic factor’ and the courts can make an enforceable order in the same terms as the agreement.
In this case though it appears there needs to be disclosure, both parties didn''t take legal advice and the agreement doesn''t comply with the law so the judge won''t/can''t turn it into an enforceable order.
We''re not sure either. We have asked lots of folks, solicitor, 2 barristers (one a QC) and we get the same answer so we can''t see where this is really headed other than costly litigation. We are clearly keen to avoid this but the other''s side''s complete unwillingness to consider the position on matrimonial law or to negotiate is hindering progress... Thx. DD