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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33310
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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Our Consent Order states that my ex-husband needs to pay maintenance

Customer Question

Our Consent Order states that my ex-husband needs to pay maintenance for the children until they leave school and then 1/3 until they leave tertiary education. It specifies that I need to spend this money on the children but it does not state where they need to be living. He has cut payments as he says the children are no longer live with me full time. Please can you explain the legal process (the CSA are not involved), that I will need to go through to retrieve the unpaid maintenance and to reinstate the correct maintenance. Many thanks
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year 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 old are the children now and where are they living?
Clare
Customer: replied 1 year ago.

Hi Clare.

Our daughter is 18, living on her own and our son is 17 living with his father during the term time and spending half the holidays with me. The Consent Order has been in place for over 12 years. It is my understanding that a Consent Order cannot be unilaterally changed and therefore if my ex wants to change it then he has to go to court. I currently spend the amounts he gives me on taking them on one holiday a year and on meals etc when I take them out.

Many thanks

Expert:  Clare replied 1 year ago.
Hi
For clarity r your son spends more time with his father than with you?
Does your daughter return to your home during holidays?
Clare
Customer: replied 1 year ago.

Hi Clare

Yes my son now spends more time with his father than he does with me. My daughter has been bought her own place by her father. She now only visits me, occasionally staying the night before coming on holiday with me.

Expert:  Clare replied 1 year ago.
Hi
When did he stop paying the maintenance?
Clare
Customer: replied 1 year ago.

Since my daughter left school in August 2014, he was paying £1,486 per month (£374.01 for daughter and £1111.99 for son). He unilaterally cut it in October to £742 per month (outstanding £747 per month). At end of April cut again to £372 (outstanding £1,114 for this month). Currently £6,297.98 outstanding.

Expert:  Clare replied 1 year ago.
Hi
I am afraid that you will not be successful in any applictaion to enforce the Order
Any liability to pay maintenance for your daughter ended when she left home for good; and since your son spends more nights a year with his father than with your it is in fact you who should pay maintenance - so it is not wise to initiate any action which could provoke your ex into applying to the CMS (new CSA) which will automatically revoke the earlier orders.
I am sorry I know that this is not the news you wished to hear.
If you do still wish to go ahead you can find the enforcement options detailed here
http://www.jordanpublishing.co.uk/system/uploads/attachments/0002/1197/EX327.pdf
Please ask if you need further details
Clare
Customer: replied 1 year ago.

Please can you clarify why the Consent Order cannot be enforced. It states in the minutes-

'The respondent do pay or cause to be paid from the first day of the month immediately following the making of the orders herein periodical payments to the Petitioner for the benefit of E at the rate of £10k per annum and for the benefit of M at the rate of £10k per annum monthly in advance until each child respectively reaches the age of 18 or completes full-time secondary education, thereafter decreasing to one third of the annual sum payable immediately prior to the 18th birthday or upon completion of full-time secondary education (whichever is the later), monthly in advance for any gap year period and during tertiary education (up to the end of the first degree or equivalent) or for as long as the said child is receiving instruction at an educational establishment.'

It makes no mention as to the monies only being paid where the children are living with me. Indeed whilst they are at school, boarding or otherwise or at University they would not be with me anyway. The intention in the minutes of the Consent Order was that I had some money that I could spend on the children in order to maintain a relationship with them. Surely this stands whatever the circumstances are as I only have have a very very small income whilst my ex is worth at least £50million. Should I be penalised because he is wealthy enough to buy them their own properties? Am I correct in assuming that no judge in this land would make me pay him anything given these circumstances?

Given these details above which course of action would you suggest?

Many thanks

Expert:  Clare replied 1 year ago.
Hi
I am afraid that the money is not meant for you to spend to maintain your relationship with the children - it was meant to be his contribution to the housing feeding and clothing of the children - which is no longer your responsibility.
Since the children no longer reside with you then when you apply to enforce the Order the court will instead dismiss the order.
In addition all your ex has to do is apply to the CMS and the order will be superseded - and I am afraid you will have to pay child maintenance if he does so despite his riches and your poverty.
At present he is paying you something - which will be lost if you apply to the court.
Clare
Customer: replied 1 year ago.

Hi.

It is my understanding that he won't be able to apply to the CMS as the Consent Order states.... (Please can you clarify)

'That all issues concerning the maintenance of the children of the family..... will be death with by the Court as provided for within these agreements, undertakings and orders including as varied from time to time. Further, it is expressly acknowledged by each party that neither has any intention to make and application to the Child Support Agency ("CSA") for an assessment for either child, each party wishing the Court to be seised of all child maintenance issues. It further having been agreed by the parties that the Petitioner requires a global sum of maintenance for herself and the children of £30k per annum, to be increased in line wight her RPI. Further, in the event that a CSA assessment is made for either child, at a sum lower than the level of child maintenance payable herein pursuant to Order 2 (ii), such shortfall will be paid by an automatic increase to the Petitioner's periodical payments payable under Order 2 (i)(a) herein.

With regard to them needing to live with me... How can this be what was agreed and intended? You can see from another section of the Consent Order' below, they wouldn't be living with me on 'gap year' or whilst they are at University? And my son continues to be with me during holidays...

'And agrees promptly to pay E&M's respective university (or equivalent) tuitions fees and accommodation costs (or equivalent costs during any gap year) and otherwise to provide financial support direct to each child respectively during tertiary education (defined as university or equivalent establishment up to the end of the first degree or equivalent to include training for a professional or vocation) in addition to the level of reduced maintenance payable to the Petitioner on behalf of each respective child as referred to at Order 2 (ii) below. ' (This was the section I previously sent you).

Therefore they would never have been living with me anyway during gap year or whilst at University. So this doesn't appear to make sense. Plus my son lives with me during half of the holidays. Please can you clarify further. Thank you.

Expert:  Clare replied 1 year ago.
Hi
Your ex can apply to the CMS in view of the fact that the child now lives with him - the wording means that if they had still been living with you then he would still have had to pay the shortfall
The gap year/tertiary education provision was included to allow you to maintain a home for them as a base - clearly not now the position.
Staying with you half of the school holidays still does not amount to residing with you
Clare

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