Consent Orders

My Partner has a Consent Order with her ex. one of the items on the order is that he agrees to pay the mortgage on my partners property until the youngest child reaches 17 or leaves full time education. At the beginning of the year the ex declared that he was in a severe financial situation and threatened that because of the spiraling interest he was paying he may well not be able to meet the mortgage payments. My ex was put under pressure by him that she may lose the family home. She however agreed to re-mortgage with him, to release equity from the property in order that he could pay off his debts. Although advised not to do this, she was heavily pressured by him with threats of re-possesion and went ahead with it. One month later he managed to persuade the youngest child of 15 that living with him would be much better. Gifts, meals out etc....
obviously my partner was devestated as she had brought up her children almost single handed since he broke up the marriage. He has now stopped paying the mortgage and maintains that because the youngest child resides with him then he does not have to pay it. He has been written to by my partners solicitor, my partner and myself and his building society. but he refuses to reply. My partners solicitor is saying that if he is taken to court he is likely to get a slapped wrist and no more because the youngest child now lives with him. There is nothing in the consent order that states that it is based on children living with my partner. surely the consent order is a legally binding agreement and all the points should be adhered to. another point on the consent order is that if my partner was to re-marry or co-habit there for 6 months then the property should be sold. Her solicitor says that this part of the consent order would still stand. Am i right in thinking who's side is the solicitor on. Does my partner have a case and should i be looking for another solicitor for my partner.
I hope someone can help.
Paul

Essentially your partner in a way and informally varied the essence of the consent order by taking equity out of the FMH. It could now be looked at in this light that the £ she gave him is a capitalised payment for the support of the 15 years old. Now theoretically work out what 15% of your partners net income is and if C stays more than 52 overnight with you a year deduct 1/7th and 2/7th if over 104 nights and this will produce a figure X. Work out how long payments of X would equal the capital payment Y your partner made and suggest that in the circumstances it would be fair that if C stays with Dad no CSA or payments for the C should be made for at least that period.

Now sadly despite suggesting this you cant stop Dad seeking an order from CSA but if the child maintenance was in the Court order your partner could seek a variation and in essence seek a nomial 5p order against herself for the C as suggested above.

Ironically your partners actions may not have been so unwise if there was a genuine risk Ex was to go bankrupt as a recent decision in a case upheld by the Court of Appeal and now likely to go to the House of Lordes points out the risk for spouses who get the FMH even by a Court Order may have this challenged by a H trustee in bankruptcy either within 2 or 6 years arguing the transfer was at an undervalue and seek an order to set aside and pocket the share H gave to the Wife.

Gt care is needed in cases where H or W have big debts and if a FMH is to be transferred to other it is sensible to seek a nominal 5p order say for 6 years to protect spouse if T'ee comes knocking on door if H say goes bankrupt -then she can seen SM.

It can be seen that she may without realising it taken action to prevent this and stop a bigger financial loss in the future.

Issue of child is easier -sadly no Court is going to stop a headstrong 15 year old who will often vote with their feet!

H threat not to pay -is this genuine because of his financial position -I suspect not.

If he is taking the mick then he needs bouncing and solr should point out the Consent order can be enforced and if he fails to abide by his undertaking bring the matter back to the Court.

The standard consent order we use in our County Court recite in a Clean Break case that "subject to the undertakings....then go on to dismiss your partners SM. Accordingly a conditional clean break...so if the order is like that she can enforce by seeking SM = to the mortgage payment and if he fails to pay the enforcement is easier eg attachment of earnings etc.

Remember tho usually SM not paid if persons are cohabiting with a waged person but this position is slightly different especially as H has had extra £ capital not contemplated in the Court Order.

Whilst the order is binding the Court can always vary if circumstances change...but have they substantially changed..Whilst C with him your partner has given capital to him so standing back from all this the Court may well say he is being controlling and opportunistic and the order should be enforced.

"another point on the consent order is that if my partner was to re-marry or co-habit there for 6 months then the property should be sold. Her solicitor says that this part of the consent order would still stand"

It seems as if a Mesher type order was made and these were the triggers to force a sale. Usually the order says below those triggers or "further order"...
that may give the Court some extra discretion to postpone the sale if necc- many courts will not enforce especially if you still have C at home.

If not then there may be more pressure applied to seek a sale.

Another approach could be to treat the non payment of mtge as payment of CM and any surplus applied to reduce the lump sum H is due on sale..and similarly treat the £ raised already as a part payment of his lump sum.

All these factors can be considered and after opting for your chioce your solr should make a suugestion to the other side by way of a variation to the order.

If no agreement then you go to Court for a variation and under the liberty to apply provision to sort out the issue.

Genearlly Courts will not substantially vary final orders but here we do have enforceable provisions in the guise of mtge & CM payments and the Court can rule if his non payment and/or the £ given to him already should be credited against the Lump sum H is due from the sale of the MH.

Indeed after working out the figures surely is the right way to go is to raise what capital you can now and pay him anor part payment in return for an adjustment of the % and that sale takes place at a later agreed date.

It is a complex issue and one which involves a great deal of discretion of the Court. Unless an app is made how do you know the accurate details of Ex H finances etc.

Yes the solr could be a bit more pro active and bullish nevertheless the costs of all this could be high.

Whilst I appreciate there is little love lost between your partner and her ex cannot a joint round table mtg be arraged to thrash something out to avoid delay etc with an agreement both parties will disclose finances beforehand under the pre action financial protocol. Or may be both go to mediation to sort by passing solicitors for a time -a cheaper option

It may be more expensive to sack solr..if partner is prepred to go to Court she can get Junior Counsel's opinion in writing qite inexpensively so she can in that way get a second opinion and that will indicate to her if her solr is giving wrong or ineffective advice

Hope this helps

Wow!
Thanks very much for the reply, i need to digest it all with my partner. One quick point, am i right in thinking that a consent order is a legally binding agreement and that it is not governed by children living with whichever parent. My partners ex states that "although it dosn't say it on the consent order we all know it based on the youngest child still living in the family home. See you in court".
The man is a very manipulative person, even the bank official who arranged the remortgage was surprised when the desperate cying man turned in to the arrogant man he has always been, once he got his money.
My partner has spent so much money and time trying to get what is rightfully hers and it seems that there is no justice sometimes. Last year, after 4 years of trying she actually started recieving payments from the CSA and arrears of £3000.00 were awarded. As he now has the youngest child with him, he is claiming for maintenance against my partner. he did this because he ceased payments to the CSA and a debt collection agency contacted him about the arrears, so he filed a claim against my partner. Now she cannot even get the £3000.00 as it is being held until a case examiner has looked at the case. This is going to take years again no doubt. What happened to justice.
The ex is living in the lap of luxury, spoiling his son rotton. while my partner has to borrow from her family to keep her home that his daughter lives in too. A mother and son that were so loving toward each other have been ripped apart by this man. in the last 6 months the boy has seen his mother less than a dozen times and only lives a mile away.
This man deserves all that is coming to him, but my partner and myself feel that the justice system will let us down if we try to fight him.

Thanks again for your help and encouragement that maybe we can do something
No doubt more questions will follow.

Paul