How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33817
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
13262538
Type Your Family Law Question Here...
Clare is online now

I would like a 2nd opinion on a family law question

Resolved Question:

hello
i would like a 2nd opinion on a family law question raised yesterday
Submitted: 11 months ago.
Category: Family Law
Expert:  Familylawexpert1 replied 11 months ago.
Hello,What is your question?
Customer: replied 11 months 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 11 months ago.
are you in a position to respond to my question?
Expert:  Clare replied 11 months 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 11 months ago.
i'd like you to answer if poss
Expert:  Clare replied 11 months ago.
OkWhat was the rough percentage split of the capital?
Customer: replied 11 months ago.
roughly 77% me and 23% her
no maintenance as clean break
Expert:  Clare replied 11 months ago.
How long had you lived together and why did she accept the settlement?
Customer: replied 11 months 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 11 months 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 11 months 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 11 months ago.
?
Expert:  Clare replied 11 months 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 11 months 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 11 months 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 11 months ago.
Thank you
Expert:  Clare replied 11 months ago.
You are most welcome
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33817
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

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Kasare

    Kasare

    Solicitor

    Satisfied Customers:

    204
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
< Previous | Next >
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    204
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/TG/TGraham12/2012-7-17_81212_bigstockBusinessHandshake508163.64x64.jpg Thomas's Avatar

    Thomas

    Solicitor

    Satisfied Customers:

    160
    UK solicitor
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Solicitor

    Satisfied Customers:

    7
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    340
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/GL/Glossolicitor/2013-5-14_214834_TWMParkinsonWright.64x64.jpg Glos solicitor's Avatar

    Glos solicitor

    Family Solicitor

    Satisfied Customers:

    2
    10 years experience in all areas of family law, now specialising in cases involving social services and children
  • http://ww2.justanswer.com/uploads/CL/clairep80/2013-8-25_191218_dreamstimexs267279822nd.64x64.jpg Clare's Avatar

    Clare

    Family Solicitor

    Satisfied Customers:

    4598
    I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
  • http://ww2.justanswer.com/uploads/HH/hhlaw/2015-12-8_22495_unnamedlanczosbicubic.64x64.jpg Harris's Avatar

    Harris

    Family Law Expert

    Satisfied Customers:

    1064
    Family Law - Specialist in Divorce, Financial Relief and Children Matters