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Clare, Solicitor
Category: Law
Satisfied Customers: 34897
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My partner is currently paying £750 per month in child

Customer Question

Hi. My partner is currently paying £750 per month in child maintenance for two children aged 16 and 14. This was under a court order from 2012. During his divorce, the consent order provided that he would use his best endeavours to release his ex from the mortgage covenants (she has already been removed from the title) but due to the fact that she was in serious arrears with the mortgage following the split and her remaining in the former matrimonial home, this has gone against him and he has not been able to remortgage or have her removed. We have just received a letter from a solicitor acting on her behalf saying that unless we can show that we have tried to have her removed, they will apply to court to have the property sold. His two children stay with us exactly half the time and we have my 15 year old daughter also living with us. We have now just applied to remortgage and have been accepted, mostly based on my income, but at a higher payment schedule and rather than on interest only, we have been forced to go on to a repayment mortgage which makes the payments around £600 per month more. Due to this, we have approached the CMS and been informed that he should only be paying £77 per month based on his SA302 declared income and the fact that we have them half the time. We have submitted the application and this is due to be confirmed in a letter this week to his ex. Obviously, she will not be happy with this but we have been informed that if she is not happy, then the only thing she can do is firstly appeal to the CMS who cannot re-calculate due to the fact that his SA302's confirm what he has available and then it is a case of her going to court to see if she can appeal but again, would the court take the calculations of the CMS in any event? We will obviously be reducing the amount to CMS guidelines as soon as the letter from them is received but my question is, what can she do about it?
Submitted: 1 year ago.
Category: Law
Expert:  Harris replied 1 year ago.

Hi, thank you for your question. It appears that given you are remortgaging now, his ex-partner will be released from the mortgage and therefore that will be settled. I highly doubt that a court will agree it is appropriate to sell the property given this development.

Furthermore, as the financial settlement was made by consent, after 12 months of the date of the consent order either of them would be entitled to apply to the CMS for a calculation which will supersede the child maintenance amount in the consent order - and unless she can providde evidence that he is earning more income than is included in the CMS assessment she will unlikely succeed in any appeal.

I hope this assists you. If you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for your question without a positive rating. Thank you.

Expert:  Clare replied 1 year ago.

My name is ***** ***** i have been a solicitor for more than 30 years

I shall do my best to help you

You have referred to his SA302.

Does your partner also receive dividends?

If he does then you need to recalculate the maintenance including those in the Income figure - whilst the CMS do not do so the first assessment when asked to re-assess they do.