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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33813
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Hi I hope you can help. I have a consent order being made up

Resolved Question:

Hi I hope you can help. I have a consent order being made up for myself and my ex. We are in good discussion over it all but both solicitors are stating a certain part of the order should be written in a certain way. I do not understand what it means and both of us are in dispute over it now.
Below I have shown both ways that each solicitor states it should be under no 5. The other details below show in relation to the clauses being made more information.

Thank you in advance

5. Same as aforesaid the Respondent’s claims for financial provision, pension sharing and property adjustment orders do stand dismissed. The Respondent shall not be entitled to make any further application in relation to their marriage under the Matrimonial Causes Act 1973 Section 23 (1) (a) or (b) or to make an application to the court, on the death of the Petitioner, for provision out of his estate

or
5. Upon payment of the lump sum as provided for by paragraph 1 of this order and compliance by the Petitioner with his undertaking to the Court provided for by recital (h) of this order and upon the implementation of the pension sharing order provided for at paragraph 2 of this order the Respondent’s claims for financial provision, pension sharing and property adjustment orders do stand dismissed. The Respondent shall not be entitled to make any further application in relation to their marriage under the Matrimonial Causes Act 1973 Section 23 (1) (a) or (b) or to make an application to the court, on the death of the Petitioner, for provision out of his estate

These are the sections that are discussed above in previous read....

1. The Petitioner shall pay or cause to be paid to the Respondent a lump sum of £28,408.00 payable by instalments as follows:
(i) As to £8,000.00 within seven days of the date of this order
(ii) As to the further sum of £20,408.00 (the balance) within four years from the date of the Consent Order payable by instalments of no less than £417.00 to be paid on the 3rd or 4th of each month.

AND it is directed that if the Petitioner fails to pay any instalment to the Respondent within fourteen days of the due date the whole of the lump sum of £20,408.00 shall become immediately payable to the Respondent

2. There be provision by way of pension sharing in favour of the Respondent in respect of the Petitioner’s rights under his pension arrangement with Shaw (S&W) Pension Plan (Defined Contribution (Money Purchase) Element) in accordance with the annex to this order (it being agreed between the parties that in the event of the Respondent predeceasing the Petitioner after this order has taken effect but before its implementation the Petitioner shall have the Respondent’s personal representatives consent to an application for leave to appeal out of time against the terms of this order).

(h) AND UPON the Petitioner undertaking to the Court and to the Respondent and agreeing to pay all of the fees in relation to school holiday child care assistance and half towards payment of all after school clubs and school trips
Submitted: 3 years ago.
Category: Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is XXXXX XXXXX I will do my best to help you
They both essentially mean the same thing but the second version is better drafted and is a much more thorough approach and makes it easier to enforce the Undertaking - this making it the preferred option
Please ask if you need further details
Clare
Customer: replied 3 years ago.

Hi and thank you for your help yesterday. Can you make clear who is giving me the correct information here please? I ultimately want to conclude and sign my consent order for divorce but this change that my ex is now wanting has completely confused me on this Paragraph 5 issue.


Gareth my ex and he states his solicitor confirmed below is that on signing the consent order I am bound to the terms and payment therein and have no further financial claim on you, but you can make any claims you like to my capital (houses), pension, salary, in fact anything until all of the £28k is paid so potential 4 years so I get no benefit at all and no clean break. I don’t know if your solicitor has done this deliberately hidden in contractual terms or not but means I get absolutely no benefit in signing the order as current written as nothing is dismissed for me and is subject to change for potentially 4 years!!


 


Gareth also states 'if I am still bound by the consent order to pay the full amount with the revised wording then surly my financial obligations ARE implemented on signing and not at the end of the 4 years, so why can’t your solicitor, but more importantly you, accept the change as proposed to dismiss all claims on BOTH sides when signing the order?? Surly this is a fair balance and still gives full protection to both sides. I would like an answer as to why this is not the case?'


 


My solicitors review on it below explaining Gareth's/his solicitor write up on it and change to the 'aforsaid' quoted previously in discussion with you yesterday.


She states 'This reads that once Gareth has paid the lump sum to you provided for a paragraph 1 of the Order and upon implementation of the pension sharing order, your claims for financial provision, pension sharing and property adjustment orders do stand dismissed. It is important that your claim for financial provision and pension sharing in particular is not dismissed until the order has been implemented. If you amend the paragraph as Gareth is suggesting it reads that your claims for financial provision, pension sharing and property adjustment orders are immediately dismissed. Where the order provides for a lump sum payment and a further sum to be paid within a period of time and a pension sharing order, I am of the view that your claims should not be dismissed until these steps have been implemented.


Which bit of advice is best based on the fact that I am having a pension sharing order done, lump sum paid once sealed by the courts and a regular payment for 4 years being paid. Ontop of that I will have our own calculated CSA payments from my ex to cover my childrens expenses.


Thank you Marie


 


 

Expert:  Clare replied 3 years ago.
Hi
Both are wrong.
There is a clear clean break so what your ex says is nonsense - you have no further claim unless he fails to pay..
However your solicitor is also wrong - the order remains enforceable even with their wording.
However the fact remains that both wordings do achieve the same result - but the court will prefer that of your solicitor as it more accurately reflects the situation
Clare
Customer: replied 3 years ago.

Thank you for your advice!



Just to make it clear for my understanding,


Since the Lump Sum Payment referred to in Paragraph 5 is payable in installments over 4 years and future claims are not dismissed by this clause until this Lump Sum is paid, could I make further financial claims on my ex within the 4 years should my or my ex’s circumstances change, even if he pays all installments on time?


I have agreed mutually a clean break with my ex so do we get a clean break (both ways) on signing the current wording or should I consider his solicitors wording if it still means the order still remains enforceable and it closes the matter?


Regards


Marie
Expert:  Clare replied 3 years ago.
Hi
You couldn't make any claim on Fresh assets - other than to pay the Order already agreed
You do both get a clean break the way your solicitor has drafted it - it just makes it easier for you to enforce the order if he does not abide by it
You could add "save in respect of any actions necessary to enforce the terms of this Order" to his wording - but you do have the better solicitor
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33813
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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