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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33523
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 have had the Final Hearing Financial Remedy. generally satisfied

Resolved Question:

I have had the Final Hearing Financial Remedy. generally satisfied with the outcome. I have a Martin Order house for life. However I realise two areas are left somewhat open ended and unsatisfactory. 1) If I want to sell early can I get the percentage granted at my death reduced due to selling early as the percentage on an early sale would be inequitable. 2) If I were to die shortly it would leave my 15 year old daughter, who lives with me in the family home vulnerable to be thrown out. How do I prevent that ? Can you advise on these points and how to go about a Variation Order, cost and procedures please.
I was surprised the Judge withdrew the Child Maintenance as the spouse now provides no support and leaves me the parent carer in a bad financial position. There is only a difference of £ 40 a month between our incomes she gets slightly less than I do with house and child.
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 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.
How does your daughter share her time between you
What does the Order actually say regarding the proceeds of sale?
Clare
Customer: replied 2 years ago.

The daughter is with me full time. Only seeing her mother occasionally.(An hour a month roughly)

The Order stated that I kept the house till I died. At which point my ex wife would get 65% of the sale value or £61,000 whichever were the greater. I had to give her £2000 cash (done) and every CSA payment I received £126 54p monthly, I was to return to her. So now she contributes nothing to her daughter's maintenance.

This was to achieve 'equality' I believe. But it leaves me with only £40 a month more to look after the child than my ex earns just for herself.

I am concerned that if I die shortly my ex will get the 65% and that seems unfair and that it will put my daughter(maybe still a minor) at risk. I have nominated my 24 year old son who lives with us as her Guardian in my Will. Also were I to sell the home in the next few years instead the 65% seems excessive as it was only based on the ex waiting for a long time (till I die) Can the Order be varied to take these facts into account?

Expert:  Clare replied 2 years ago.
Hi
Was there a full hearing with evidence given by both sides and a final decision made by the Judge.
If so what was the Justification the Judge gave?
Clare
Customer: replied 2 years ago.

Yes there was a full Financial Remedy Hearing with a Judge.

The Applicant had a Barrister, I was an LIP. At the end, after a break, the Judge gave her decision. I have yet to get the Judge's transcript.

But from what I remember it was to create, as far as possible, a position of ' financial equality', between the parties. Since there were minimal assets, the FH being the only one and not worth dividing as this would render both homeless. So as Respondent and parent/carer I got the home under a Martin Order ,till I die. Then the ex would get 65%. Its these two points , an early sale or an early death that concern me since they would give a high percentage earlier that predicted on death. Can a variation be requested if either of these two seem likely? If it is possible how do I go about getting it? Cost and Procedures.

Expert:  Clare replied 2 years ago.
Hi
But what was the justification for your not receiving child maintenance?
Clare
Customer: replied 2 years ago.

By stopping the CSA Child maintenance or in reality, I get it and give it back again, the justification was to balance our incomes to be about equal. Putting us on a level playing field I guess. That's all I know. Grounds for appeal?

Expert:  Clare replied 2 years ago.
Hi
Did you both give oral evidence?
Clare
Customer: replied 2 years ago.

We both gave oral evidence. We both were questioned. We both produced up to date financial summaries. However due to my inexperience and the Applicant's Solicitor not putting late paperwork from me into the bundle some of my evidence was not heard. I did submit a supplementary bundle but it was not used. The Judge only allowed matters to be heard that were in the Bundle. Due to the hearing being allocated four hours it was inevitably a hurried hearing. I am however not keen to appeal as I stand the risk of not getting the Martin Order and that was my priority. Its the two items I mention that concern me mainly and the fact that now I am financially disadvantaged by the removal of CSA.

Expert:  Clare replied 2 years ago.
Hi
I am afraid that you cannot pick and chose the parts of the Order that you challenge.
You either accept the Order as it stands OR you appeal the Order and take the risk that the whole Order is changed
If your do decide you wish to sell and can do so then you could negotiate with your ex on the basis that she can have a lower share now or alternatively you will simply stay put and she will have to wait
So far as the position in the event of your death is concerned then I am afraid that this is not an argument that will be successful unless you die within say 6 months in which case your estate can challenge the Order
I believe that you do have grounds to appeal as it seems that the court has deliberately acted to thwart the requirement that your ex pay child maintenance and there is no justification I can even think of for that.
It is possible that that part could be challenged as a discreet issue if you wish.
The starting point is to notify the court that you need the Transcript as a matter of urgency as you wish to appeal
Please ask if you need further details
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33523
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

OK thank you very much. I'm wondering if it would be contempt of court to have the CSA payment cancelled and reapply for it.

As I said I don't wish to appeal, as I stand the risk of the Martin Order being lost. I will apply for the Transcript today. As I am sure you are aware there is a huge delay in them being sent out in the Courts here. With the Courts being overwhelmed by , they claim, people like me, LIP's

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