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Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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Where do I stand legally if I had a draft consent order agreed

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Where do I stand legally if I had a draft consent order agreed as part of collaborative divorce proceedings and my estranged wife has now changed her mind and wants more. The house was sold in October 2015 and the proceeds divided as per the draft consent order (she received over 80% of the equity / assets) and I pay her £500 per month child maintenance as per the consent order (even though we have 50/50 shared care and I pay for half of clothes / school trips / music lessons etc and I believe if we went to the Child Maintenance Service I would not be liable to pay any maintenance due to being a shared carer). Her solicitor was supposed to have amended the consent order to show the precise figures after the house sale and then forward to a judge for approval. This has still not happened because my wife thinks she is entitled to more. I have told her there is no more to give - I ended up with £20k which was the minimum I needed to put as deposit on the purchase of my new house. I feel like my life is on hold whilst she is trying to squeeze more out of me but there is no more left to give. What are my options? We spent £14k in solicitors fees in the collaborative process which was taken out of the joint pot before the proceeds were split - can I recover my half from her if she breaks the collaborative agreement.
Hi, thank you for your question. Did she sign anything regarding the agreement?If an agreement has been finalised and the only steps that need to be taken is to finalise wording of the consent order then in essence the agreement should be final, save for disclosure of unknown information at the time of the agreement or a major change of circumstances. There is case law dealing with circumstances where an agreement has been reached but not formalised and you are able to apply to court for a notice to show cause regarding the agreement.There could potentially be costs implications if the matter now had to be pursued to court when it could have been settled before hand - but this is at the discretion of the judge taking into account all the circumstances of the case. I would imagine that the only costs you would be able to recover, if the court agrees that the agreement is binding, are your court and legal fees to pursue an application to court to show cause and not the past legal fees you have incurred as those have effectively resulted in an agreement.If you have any further questions regarding this please let me know. In the meantime if you found this information helpful please provide a positive rating. I will not be credited for answering your question without a positive rating. Thank you
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Customer: replied 2 years ago.
The draft consent order was signed by both of us in the presence of both solicitors. She said that when she spoke to her financial adviser during the collaborative process she was advised that she could borrow more money on a mortgage than it turned out was possible. She still ended up buying a slightly more expensive property than the one she originally offered on but has said she had to borrow money from another source to be able to complete the sale. I don't know whether that is true or what the shortfall was - but if there was then it would probably have been given to her by her mother. I have said that from my point of view I have fulfilled my obligations to the letter. If she feels that she was given wrong advice by a professional independent financial adviser then she needs to take it up with them. What should I do now?
Customer: replied 2 years ago.
Further to my last note - she was apparently aware of this before the house sale went through - she said she had some advice off another solicitor who said "we would never have agreed to this agreement" and the solicitor apparently advised her to withdraw the sale of the marital home and then go into fresh negotiations on a new settlement. She did not do this or inform me that she had spoken to another solicitor at the time. The marital home was then sold and the proceeds distributed in exact accordance of the draft consent order. Subsequently I have been chasing her for 6 months to get her solicitor to complete the consent order and during this time she advised me of the advice she had received above.
Thanks - are you legally represented currently? If you are then you should ask your solicitors to write an urgent letter outlining the position and to threaten an application for notice to show cause and threaten costs for that application. If you are not, then you should consider doing this yourself. The consent orders were signed, and therefore should have been submitted by her solicitors and an agreement has been reached. What she did after this, and the advice she received and acted on is her prerogative. In any event, she should not have done anything until the consent order was approved by the court.You should also be aware that no matter what agreement was reached, it is for the judge to decide whether the settlement is fair having taken all the circumstances into account - so even if you have reached agreement the judge's role is not just a rubber-stamping process and both your financial positions and needs (and those of any children) will be taken into account.
Customer: replied 2 years ago.
The solicitor I have used for the collaborative process has not given me any other advice other than to suggest another 4 way meeting. However, as this is very costly and I am not prepared to offer any more then I can't see the point - especially as my wife is saying she can't afford another meeting either. My collaborative solicitor is saying that if my wife's solicitor doesn't confirm within the next few days that they are proceeding with the existing consent order then we will have to say that the collaborative process has failed and I will have to seek another solicitor for advice. Can my collaborative solicitor send the letter to threaten an application for notice to show cause or will I have to go to another solicitor to do this? The reason for the draft consent order was that the house was going to be sold before the consent order would have had time to go to the judge.
Thanks - I do not think that the collaborative lawyer can deal with the application for notice to show cause as they are there to prevent the matter having to go to court, but you should raise it with them and see their view on this.
Customer: replied 2 years ago.
In the meantime I would imagine that I should stick to my obligations under the agreement in terms of paying maintenance and half of any other costs for the children? Or - would the other alternative be to ask her to confirm that she is not happy with the terms of the consent order and if she confirms she isn't then could I stop paying the current level of maintenance and ask her to refer our case to the Child Maintenance Service (as I have the children 50% of the time and pay for half of everything and half of everyday care including washing / ironing / taking to school etc)?
Usually the terms of the agreement and consent order is to be implemented upon granting of decree absolute. Everything you are doing now is not technically binding so if you stop, she will need to pursue an application herself to the CMS. But in my opinion it may be best not to disrupt what has been in place so far as this may rock the boat a bit...
Customer: replied 2 years ago.
Thank you for your advice
No worries, hope it goes well. If you have further questions in the future you can ask for me directly by starting your question For Harris
Customer: replied 2 years ago.
ok - thank you