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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34585
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 would like a 2nd opinion on a family law question

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hello
i would like a 2nd opinion on a family law question raised yesterday
Submitted: 1 year ago.
Category: Family Law
Expert:  Familylawexpert1 replied 1 year ago.
Hello,What is your question?
Customer: replied 1 year ago.
i got divorced in late 2013-used a solicitor via an online divorce provider-'clean break' consent order and court filings only ie no advice (my ex and i agreed our own deal)
i recently noticed that the consent order states that both petitioner and respondent acknowledge that they have had access to independent legal advice, which was not the case
given the length of our marriage the divorce settlement was very favourable to me vs what a court would determine in a contested scenario and my worry is that the error re legal advice in the consent order might render it capable of being set aside (application to set aside v unlikely but i like to be able to sleep at night)
however having done some research case law seems to say that any application to set aside must be made without delay and certainly within a year and clearly my ex knew that she hadn't taken advice at the time of signing the order in late 2013 so we're now more than two years on
i've also read about no set aside being permitted when the complaining party is partly to blame for the mistake (which she was)
when i took this error up with the acting solicitor he said that, advice or no advice, the judge would not have made the order unless he was satisfied with its fairness and it is therefore final and binding-i guess scenarios occur where one or both parties have taken legal advice but the judge still isn't happy with the terms agreed and refuses to make the order?
your view would be appreciated
Customer: replied 1 year ago.
are you in a position to respond to my question?
Expert:  Clare replied 1 year ago.
HII notice that you actually asked for me originally - would you like me to deal with this or leave you with my colleague?Clare
Customer: replied 1 year ago.
i'd like you to answer if poss
Expert:  Clare replied 1 year ago.
OkWhat was the rough percentage split of the capital?
Customer: replied 1 year ago.
roughly 77% me and 23% her
no maintenance as clean break
Expert:  Clare replied 1 year ago.
How long had you lived together and why did she accept the settlement?
Customer: replied 1 year ago.
married for 22 years and she came up with a settlement which she felt was morally right (yet comfortable) given that 'our' capital had been derived from my efforts
the sums involved were relatively large-she ended up with about £900k so i guess the judge took the view that the percentage was low but the actual sum was reasonably tidy
Expert:  Clare replied 1 year ago.
Yes I suspect that you are rights.For clarity - it was simply sealed by the court - there was no short hearing involved?
Customer: replied 1 year ago.
no hearing-consent order just sealed and returned
in any event we're more than 2 years on-doesn't case law (rose v rose?) say that she's effectively time-barred as she knew at the time that she hadn't taken advice?
also from a logical point of view surely one party shouldn't be penalised via set aside because the other party said they'd taken advice when they hadn't? (which is back to the joint mistake point referred to in my original question)
Customer: replied 1 year ago.
?
Expert:  Clare replied 1 year ago.
Over turning a Consent order is never easy.There has to be a specific event - called a "Barder event" that meets all the Barder qualificationsYou can read more herehttp://www.marilynstowe.co.uk/2014/08/12/important-family-law-cases-barder-v-barder-by-john-bolch/Alternatively if it can be shown that that you had misled your ex as to the extent of your assets - that could be a reason for overturning the order.Another reason Not having received legal advice could be a reason - but only if it was also shown that she was coerced or pressured into not taking advice OR that she was mentally incapable of understanding the consequences of what she was doingUnless any of those apply then the simple fact that it says she took legal advice when she did not is NOT sufficient to overturn the orderI hope that this is of assistance - please ask if you need further detailsClare
Customer: replied 1 year ago.
thanks
this isn't a barder matter
she was not misled re the value of assets
she was not coerced/pressured re not taking legal advice
moreover i made some advance payments to her in the months leading up to the divorce and recorded them in a document which we both signed-i think that would show that the divorce process was underway over many months (with her happy to accept payments from me) and that she had plenty of opportunity to take advice should she so wish
Expert:  Clare replied 1 year ago.
Exactly so you have nothing to fear unless she has evidence that she was not mentally capable at the time - and from all that you have said it is most unlikely,so sleep easy
Customer: replied 1 year ago.
Thank you
Expert:  Clare replied 1 year ago.
You are most welcome
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34585
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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