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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I divorced about 8 years ago and signed an agreement with my

Resolved Question:

I divorced about 8 years ago and signed an agreement with my ex that I would give him 80k cash (part value of the house at the time) and that he would pay an agreed amount of maintenance (60 per week plus inflation) for our two children who were 8 and 13 at the time. He initially kept to the arrangement for a couple of years but then paid very little as he was in and out of work (self employed). He's prob paid less than 300 per year for the last 4 or 5 years. He is currently doing up a house owned by his present partner so she can rent it out so says he has no income, and isn't interested in finding work. Is there anything I can do? He will have some equity in his house which I guess will be jointly owned by him and his partner, but probably little else until he eventually inherits from his mum and dad, who have some wealth. I also feel I was badly advised when we got divorced, as we wanted to transfer the house to me and him pay no maintenance but we advised to do differently by the lawyer. I have always earned more than him so have never pushed it, but I feel he is taking the Mick and biding his time until the children are out of education, when the agreement ends.
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Are you sure that he has no income at all?
Clare
Customer: replied 3 years ago.

My guess would be that he probably has some income but it would be fairly low, at a guess around £6 to £10k a year. What I would like to do is to somehow make a claim for what he owes, even if it takes him some time in the future to pay it, otherwise he has every incentive not to work until the agreement expires.

Expert:  Clare replied 3 years ago.
Hi
Was the child maintenance detailed in the Court Order?
Clare
Customer: replied 3 years ago.

I think so, we signed the agreement which was drawn up by a lawyer, when we separated and I recall sending a copy to the court with the papers when we divorced ( which we did ourselves without further legal input) so they could see that we had considered arrangements for the children. The divorce went through without any issues.

Expert:  Clare replied 3 years ago.
Hi
Do you have a copy of this?
Clare
Customer: replied 3 years ago.

Yes I do

Expert:  Clare replied 3 years ago.
Hi
And does it mention the child maintenance?
Clare
Customer: replied 3 years ago.

Yes the separation agreement specifically sets out the financial agreement between us is that I would pay him a lump sum and he would pay maintenance until they are both out of education.

Expert:  Clare replied 3 years ago.
Hi
Does the paperwork have a court seal?
Clare
Customer: replied 3 years ago.

The deed of separation isnt stampet, as it was a document agreed between ourselves at the time.


 


I have a 'statement of arrangements for children' form which is stamped by the court as part of the divorce proceedings , this form asks about maintenance and a copy of the deed of separation was sent to court to evidence that maintenance had been agreed.

Expert:  Clare replied 3 years ago.
Hi
Was the Agreement turned into a Financial Order within the Divorce Proceedings?
Clare
Customer: replied 3 years ago.

No

Expert:  Clare replied 3 years ago.
Hi
Have you remarried/
Clare
Customer: replied 3 years ago.

No but I live with my partner.

Expert:  Clare replied 3 years ago.
Hi
How much is the house worth and how much is outstanding on the mortgage?
Clare
Customer: replied 3 years ago.

Do you mean mine or his? If you mean his I would guess it to be worth around 120k but I have no idea how much his mortgage would be.

Expert:  Clare replied 3 years ago.
Hi
I meant the house that you had to give him part of?
Clare
Customer: replied 3 years ago.

It was actually registered solely in my name. It was valued at around 200k and had a mortgage of about 25k on it at the time, so equity of circa 175k.

Expert:  Clare replied 3 years ago.
Hi
Have you already paid your ex?
Clare
Customer: replied 3 years ago.

Yes about 8 years ago as part of the deed of separation agreement

Expert:  Clare replied 3 years ago.
Hi
May I ask why you have not taken any action in the last eight years?
Clare
Customer: replied 3 years ago.

Probably being too sympathetic -he didn't have the income and I did, I was trying to do the 'right' thing through what I thought may be a financial hardpatch for him. I've slowly come to the view that he's probably taking advantage, plus my own financial position is less favourable now than it was initially, so I need him to contribute properly.

Expert:  Clare replied 3 years ago.
Hi
I am afraid that your options are limited (and I hate saying that when it is clear that all you have been is reasonable)
Your only option is to apply to the CMS (new CSA) and it is likely that all you will get is a minimal payment - and sadly there is no other option available to you
Sorry to give bad news - please ask if you need further details
Clare
Customer: replied 3 years ago.

Is there no remedy under the deed of separation agreement that we both signed, as presumably this is a legal contract that we entered into.


 


Also, in your view, was I badly advised initially. I feel it!

Expert:  Clare replied 3 years ago.
Hi
Sadly no that agreement was only enforceable IF it was turned into a Court Order within the Divorce Proceedings
The original agreement was shaped by the fact that the agreement not to claim child maintenance would not have been enforceable - but I have to say that there were other ways his offer could have been preserved
Clare
Customer: replied 3 years ago.

If I can't enforce the agreement can I rescind it, on the basis that he hasn't followed through with his part of the bargain, and make a CCJ type claim against him for the £80k back? I realise I would have to wait until he sold the house or came into any money from his parents, which may be years to come.

Expert:  Clare replied 3 years ago.
Hi
Sadly that is not possible - you cannot rescind the agreement
Your only option would be to consider making a Financial Claim within the old divorce proceedings, but sadly your chances of success are limited to nil given his lack of assets - and I am afraid that you will have no claim on Inherited assets in the future
Clare
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