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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: Law
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Experience:  English solicitor with over 12 years experience
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I'm getting divorced and have had a consent order prepared

Customer Question

I'm getting divorced and have had a consent order prepared (fixed price lawyer). I have agreed the terms with my ex, but the consent order is so strongly worded (and seems one sided to me on a couple of points) that my ex won't sign it. The people who have prepared it have said these 'sticky clauses' must stay in to be acceptable by the court. The main one being an 'undertaking' that mentions prison for non payment. How do I cheaply get a second opinion on whether the legalese can be softened to avoid the tension points ? Thanks
Submitted: 2 years ago.
Category: Law
Expert:  UKSolicitorJA replied 2 years ago.
Hello,

I am afraid your fixed price lawyer is correct. It is a legal requirement that the undertaking to pay money come with a notice as follows:

If you fail to pay any sum of money which you have promised the court that you will pay, a person entitled to enforce the undertaking may apply to the court for an order. You may be sent to prison if it is proved that you –

(a) have, or have had since the date of your undertaking, the means to pay the sum; and

(b) have refused or neglected, or are refusing or neglecting, to pay that sum’.


The person giving the undertaking must make a signed statement to the effect that he or she understands the terms of the undertaking being given and the consequences of failure to comply with it, as follows:

‘I understand the undertaking that I have given, and that if I break my promise to the court to pay any sum of money, I may be sent to prison’.

The above notice is contained in Practice Direction 33A, see here:


https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_33a


In any event, the consent order drawn up will need to be approved by the court and the court will check that it is reasonable before approving it.

May I help further?
Customer: replied 2 years ago.

Thanks Alex. Is it possible to have a 2-way wording so it seems fairer? The consent order has bits where I have to pay my ex (child maint etc). If it was for both parties, that would probably ease her concern.

Thanks

Expert:  UKSolicitorJA replied 2 years ago.
You could change the "undertaking" to an "agreement" so that both of you are agreeing, rather than underatking to pay the money to each other.

You must discuss these changes with your lawyer.

All the best, ***** ***** feedback
UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience: English solicitor with over 12 years experience
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Expert:  Clare replied 2 years ago.
HiThere is no requirement for a formal Undertaking to form part of a Clean Break Consent OrderIf there is money that has to be paid by one party to another then it should be expressed as part of the Order - not as an Undertaking in the preamble.Clare

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