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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 11559
Experience:  30 years as a practising solicitor.
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A friend has a sealed consent order for a clean break divorce

Resolved Question:

A friend has a sealed consent order for a clean break divorce settlement, dated 12 months ago according to the money available at the time (around £70,000). The building society has now decided that it calculated the mortgage release figures incorrectly and that nearly £8000 more is due to the couple.
The wording of the consent order states "1. The proceeds of sale together with any interest therein, currently being held by [conveyancing solicitor's name LLP], of the property [address given] shall be divided as to 80% to the Applicant 20% to the Respondent. 2. Upon compliance with paragraph 1 above: (a) Both parties claims for financial provision shall stand dismissed and neither party shall be entitled to apply for further provision whatsoever pursuant to matrimonial clauses Act 1973, howsoever arising."
Given the wording of the order, in what proportion should the new money be divided?
Submitted: 2 years ago.
Category: Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
The proportion is 80:20 of the proceeds of sale irrespective of the amount held. That will be why the order was drafted without named amount. The parties will get 80:20 whether the sum is £70000 or £78000.
The fact that "neither party shall be entitled to apply for further provision whatsoever pursuant to matrimonial clauses Act 1973, howsoever arising" makes it conclusive.
I hope that helps.
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Customer: replied 2 years ago.

Did you read my question carefully? The terms of the settlement refer explicitly to the amount of money held by a particular solicitor at the time of the order. ie it was all settled 12 months ago. The £8000 is "new money" that was not considered at the time.

Expert:  JGM replied 2 years ago.
But still "proceeds of sale"?
There's no reason why the extra should be treated any differently, unless you have reason to think otherwise. The fact that the order refers to where the money is "currently held" is secondary to the spirit of the order, in my opinion. If they want to try to argue it in court, I know what the result will be and much of the £8000 will be taken in legal fees.