My husband is divorced and had an order sealed a number of years ago. Subsequently, he and his ex wife drafted a document in which they agreed to vary the order regarding the terms of her maintenance to allow her receive money post remarriage and to limit the terms of the maintenance for the children. Ie; to reduce his maintenance obligations from tertiary to secondary education. They both signed it and lodged it with the court. The family court rejected the agreement as unenforceable as certain of its points differ from law.
The ex wife is claiming that the variation document is a legally binding commercial contract that supersedes family law and she says that will pursue him in the Chancery division if he reverts to the original court order (which will actually give she and the kids £100k more than the agreement that she signed).
I would like to understand if there are any circumstances when the chancery court can overrule the family court regarding maintenance for children? She is arguing that she can limit terms for child maintenance in favour of money for herself now and I’m not convinced that she can give up the children’s rights to maintenance through university. My understanding is that MCA makes provision for just this type of circumstance and that all matters relating to spousal and child maintenance are family matters rather than commercial.
The courts do different jobs, county court can deal with family law, chancery commercial, neither have jurisdiction for child maintenance for a start, chancery cannot overturn a court sealed order they would refuse the application, or if they are conned into looking at it refer it back to county court.
This second order they both signed was rejected, its not worth the paper its written on.
The key issue here I suspect is that the other side have engaged a commercial litigation lawyer who seems to refute any form of statute regarding family law and/or case law where individuals have tried to pursue family matters in the chancery division and it''s been kicked out (eg: Peacock).
We just don''t get why they are persisting in this nonsense, particularly when they are trying to enforce an agreement that is worth less than we have offered/ is in the court order! I guess that some people just like the drama of court action whereas it just makes me rather sad.
The document was worded as a ''wish to vary'' and made reference to the original order. It was signed and witnessed by both parties. My husband did not have legal advice. She allegedly did.
When lodged with the court, the judge wrote back saying that it wasn''t enforceable and that they needed to go through the appropriate channels to vary the order and suggested that they take legal advice.
My husband is now self-repping but has had some legal advice and has been told that this is a family matter as it relates to spousal and child maintenance. The other side just can''t get their heads round the fact that it''s not a commercial contract. Per my earlier note, I suspect that this is because the other side is being represented by a commercial litigation lawyer...
Its seldom that family matters cross to commercial court, it can happen but nothing you say would suggest its the case here.
The facts are simple,
You have a court sealed order that can be varied by consent or further order of court, they applied to vary with a new order court said take a running jump the judge wont seal it, therefore the original order stands.
The lady then goes to a commercial lawyer and says well we have this contract, ooer the lawyer says yeah ill take a look, it is after all his/her job, the commercial lawyer will probably have very little knowledge of family law, what s/he will know is the chances or setting aside an existing order is slim to none.
What you always have to remember is lawyers get told one half of a story, often people tell lawyers a story in the hope of being told what they want to hear, its a waste of time of course but people do and always will do it.