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familylawexpert, Family Solicitor
Category: Family Law
Satisfied Customers: 311
Experience:  Substantial experience (14yrs +) in divorce, financial cases, cohabitation, pre-nuptial agreements and civil partnerships.
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My question is relating to an agreed Consent Order and how

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My question is relating to an agreed Consent Order and how it can be varied by another judge at a hearing which is not to set aside the Consent Order but to vary it without agreement.

A brief history: In October 2012 we agreed a Consent Order whereby my ex-wife claimed that she had no borrowing capacity and would not have so in the foreseeable future. At that time our child was 5 years old and he lives with us both. She stated she needed funds to buy a "mortgage free" property and be able to secure a home for her and our child. On this basis only I agreed to sell our family home which was bought only 10 months earlier and she would get 95% of the proceeds and I would receive 5%. We agreed to sell the property forthwith for the best possible price as we were both liable for the mortgage payments until it was sold.

Since then I have been back to court 5 times because she has deliberately delayed the sale. Firstly she immediately requested to sell it for £65,000 more than we paid for it (we live in NE England). Then even after having orders stating that it must be sold and the price set, she refused to sign the Estate Agents contract saying she believed it was worth more. The order said that the price was set unless we agreed a higher or lower price, we could not agree so the set price of £270K was set by the district judge. She went into another hearing at court and lied about the Agent agreeing it was worth more (this was proven by an email from the Agent stating he agreed with the price in the court order) and her solicitor then misrepresents matters by saying that she could not instruct her client to proceed with the order because she had misunderstood it herself (it was clear and she had sent a letter to the Selling agent explaining the context of the order). Another judge then states it should be sold forthwith and if a buyer comes in at £270K it should be accepted. She still delays signing the contract with the Selling Agents. We receive 2 offers and the final offers both slightly above the asking price and then she refuses to respond to these offers. This is nearly 14 months after the agreed Consent Order.

She then states she is in a position to buy the property herself and can obtain a mortgage to do so and wants me to agree to vary the Consent Order to transfer the property to her. I decline as the basis for the Consent Order proceeds was dictated by her maintaining during final hearing proceedings that she had no borrowing capacity. Yesterday in court, another judge decides she can buy the property herself and I have to transfer the property to her. Regardless of my protest that this goes against the agreed order and she has lied to procure the property. The judge says her since the Consent Order her circumstances have changed and she can have a variation. I asked to appeal and that was rejected. I had previously tried to buy the property myself and she would not agree. Also if i delay matters for another 14 months and my circumstances change i.e. I lose my job; does that mean I can return to court and ask for a variation? The Consent Order stated the following:

To sell the property forthwith on the open market - a transfer is not selling it on the open market and she will have no stamp duty or anything to pay.
The mortgage is to be discharged in favour of Santander - she is given a transfer and then she says she will discharge this mortgage and take up another with a new lender (unproven).

Bearing in mind that she has not applied to amend or set aside the Consent Order and I have not agreed to any change; how can variations just be given 14 months later when we already agreed on an Order? This goes against the essence of a Consent Order.

Since I was refused permission to appeal, I am thinking of sending in a letter to the Judge asking him to reconsider his decision on the basis that her change of circumstance does not allow for a variation unless she is requesting to set aside the Consent Order itself. She has deliberately set out to procure the property and clearly lied about not being able to borrow and now says she can get the funds but it will be tight for her; this does not provide the security for her and our child as she requested at the final hearing. She has been in contempt of all orders and then gets a variation to reward her! I do not have the funds to set aside the Consent Order myself and re-enter court on this matter, but I fail to see how an agreed Consent Order can be varied without my agreement.
Do I have any re-course in which to request the judge to re-consider his decision? Is he allowed to allow changes after 14 months without my agreement? He based his decision on her circumstances changing, so if mine change in the next year will I be granted to return to court and ask for a variance, the answer to this is "no" and therefore his decision based on her circumstances changing is prejudice to me as I would not be given the say consideration. Unfair/biased?
My name is XXXXX XXXXX I will be able to help you with your question, but first I need a bit more information:

- does the consent order also provide for you to pay maintenance to her for her benefit (ie separately from the maintenance for your child?

Customer: replied 4 years ago.

The order only states that I pay CSA for our son who we share.


After that I have a clean break.


If she does 'buy you out', are you going to receive your 5% interest?

Customer: replied 4 years ago.

Yes I will receive my 5%.

I do not see it as her buying me out; it will be she has an asset of £270K for delaying matters for 14 months and I get a paltry amount.


Also the proceeds of sale agreed were based on her maintaining she had no borrowing capacity and needed to be secure for her and our son.

Now that she says she has a borrowing capacity how can she be given a variation to the agreed Consent Order due to her dramatic change in circumstances when I have not agreed? On that same principle would that not mean that I can get a variation in terms of the split of assets due to her new circumstances?

Therefore her buying the house would only be detrimental to me requesting a fairer split.

It seems to be one rule for me and another for her.

It's all very confusing....

I sympathise with you, and can see how you feel outmanoeuvred by her.

Unfortunately, you do not have a realistic chance of having the order substantively changed. The courts accept that earning capacity is always variable, which is why orders for ongoing maintenance are always capable of being varied in the future. Capital orders are different - they can only be varied in very limited circumstances. Here, the court's view of the order and yours starts to differ. From the court's perspective, the original consent order you agreed provided for her to get c. £270k (roughly) and you to get c. £14k (this is a guesstimate based on the figure you gave me for her). The court's view will be that irrespective of whether the property is transferred into the name of a third party or to her, you still get c. £14k, and she still gets c. £270k.

It is true that you don't get any upside from her increased (or suddenly existing) earning capacity. On the plus side, she can never make a claim from you for maintenance for herself, however much income you manage to start earning. I'm not saying you should be delighted; but a lot of ex-husbands are still on the hook, for spousal maintenance and would love to have had a clean break.

So, in summary, I'm sorry, but you're stuck with it. You have my sympathy, but it's better for me to tell you where you are than give you false hope, and have you waste your own time pursuing something illusory in court, which would become increasingly frustrating.

Despite being the bearer of bad tidings, I hope you found my answer useful. Please ask for any clarification you wish for; if you don't need any, I'd be grateful if you could rate my answer.

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