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plclegal, Barrister
Category: Family Law
Satisfied Customers: 7996
Experience:  Barrister at law
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Decree absolute was October 2019, after a financial remedy

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Decree absolute was October 2019, after a financial remedy contested hearing in June 2019. At this contested hearing, husband was ordered to pay £200 spousal maintenance for 24 months- last payment 1 July 2021. after which clean break. I really don't want to open the can of worms that is a financial case- however, ex husband has applied to court twice since 2019 for child arrangements, and intends on applying again for an additional 50 nights, on top of the 70 already agreed by consent in 2019 (after five hearings.) I do not need any additional funds right now. However I may do in the future, and I am weighing up 1. applying for a nominal order once the spousal payments stop and 2. not doing anything. If I choose the latter, what would happen in the future, if I had to take time off work to homeschool our autistic child (quite likely at secondary age) and ex husband refused to financially support? Many thanks/

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As you have a final order with time limited spousal maintenance (at a pretty low rate, I add), unless you have something which has changed the landscape significantly in terms of the finances since the date of the order you would most likely not succeed in a variation for a nominal award I'm afraid. You can't just go back to court and ask for a nominal order, you have a clean break ordered and a judge will not undo this without very good reason. Variation applications nearly always fail, in my experience, as the court is generally adamant that the final order should be the final order.

I'm also afraid that homeschooling would not count as a significant event, in terms of going to ask for a variation.

I'm afraid that your ex husband's liability to support you financially ends in July 2021, so what happens in the future is not his responsibility. I don't mean this to sound harsh, but that is what a clean break order means.

Of course there will always be a child maintenance liability, if you are the main carer for your son.

I hope that this clears up things for you.

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Another lawyer may have a different opinion. If there was a black-and-white answer to every legal problem there would be no need for anything to ever proceed to court!

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Customer: replied 1 month ago.
Would any of the following be relevant, since the clean break was ordered: 1. Our son's autism diagnosis and the fact he is legally a child with a disability (which statistically often results in school refusal) 2. The pandemic has made it harder for me to increase my work hours due to having both children at home best part of the last 12 months 3. The father's repeated child arrangements applications and the fact this is unsettled and will affect the child maintenance payments (on which the clean break was based). Ex husband stayed in our house at separation (we left overnight due to DA), we had to live with my parents for four years, and only managed to reach the threshold for local private rental after the financial remedy. ordered spousal maintenance. Due to a likely reduction in future child maintenance contributions and the loss of the spousal maintenance, if my current landlord took this house off the rental market, I'd be unable to rent another locally with the income I will have -what would I do? We have two children (only one of them is disabled.)
Customer: replied 1 month ago.
ps. More to do with the threshold at which a private reenter will accept your application- I dont spend much, so could afford, but they won't rent to you unless your income is x amount multiplied by the rental (ours is £1000)
Customer: replied 1 month ago.
I should have given you the wording- apologies- it says:1ST JULY 2021 after which the applicant’s claims for periodical payments and secured periodical payments shall be dismissed and it is directed that upon the expiry of this term:
i. the applicant shall not be entitled to make any further application in relation to the marriage for an order under the Matrimonial Causes Act 1973 section 23(1)(a) or (b) for periodical payments or secured periodical payments; and
ii. the applicant shall not be entitled on the respondent’s later death to apply for an order under the Inheritance (Provision for Family and Dependants) Act 1975, section 2.
However, the applicant may apply for an order to extend this term, provided the application is made
before the term expires. For the avoidance of doubt, paragraph (d)(ii) shall not apply in the event of the respondent’s death prior to the expiration of this term.

Thanks for the additional information. OK, so you do have liberty to apply to extend the maintenance provision built into the order. This is pretty unusual to be honest! This does change matters.

In this case there's not really anything to lose by applying, as you can make your case (using the evidence you refer to above). If you don't apply, it will end. If you do apply before the term ends, you have a chance of either extending the term or nominal as you suggest. As I said this is not normal, and so you should make the most of the provision if you can justify the additional time.

I would suggest though that the court will have little time for a nominal "just in case" argument, whereas if you can establish a need now to continue with payments, then you should be on a better track.

I hope that assists.

Customer: replied 1 month ago.
Thanks so much for your reply. I am a bit worried about retaliation, cos he will see it as an attack, and so I am concerned he may apply for receipt of half our child's DLA, or a portion of the child tax credit (which would leave me in a similar situation re housing.) Would my application increase the legal likelihood of this- ie. if we don't have a clean break, can he apply against me for portions of child benefit. child tax credit or DLA?- or could he do that anyway, regardless of a clean break?

Happy to help. I'm afraid a clean break divorce settlement will not affect his ability or motivation where applying for the other benefits you have listed here.

Thank you again for visiting JustAnswer, please do let me know if you have any additional questions in the future. I am also happy to answer any new questions on other topics that you may have, you can request me by putting “for PLCLEGAL” at the start of the new thread. Best wishes, Peter

plclegal and other Family Law Specialists are ready to help you
Customer: replied 1 month ago.
Thanks so much for all your help.

Happy to have helped. Take care.

Customer: replied 30 days ago.
Sorry to ask another question- but how would I go about applying in the first instance.

You would submit a D11 application notice. If you have further questions about that - please could you start a new thread marker for my attention? Thanks in advance.