Family Procedure Rules 2010: Financial Orders

family procedure rules financesThis post is part of a series about the Family Procedure Rules 2010, which focuses upon some of the most important changes for practitioners and clients. Today we are going to look at Part 9 of the Family Procedure Rules 2010: Applications for a Financial Remedy.

Earlier in this series I mentioned that the new Rules feature new terminology. It is time to say goodbye to the archaic term ancillary relief, and hello to the financial order.

(For non-lawyers: a financial order, which used to be called ancillary relief, is what you apply for during divorce, civil partnership or judicial separation proceedings.)

The financial order also forms part of the new, generic term financial remedy, which encompasses all forms of financial relief. It includes applications for financial provision for the children of unmarried parents, (Schedule 1 of the Children Act) applications for financial provision after an overseas divorce and applications to the magistrates’ courts for which the procedure differs.

The two new terms are defined in the Family Procedure Rules 2010 by Rule 2.3 (page 29). A financial order is defined as:-

(a) an avoidance of disposition order;

(b) an order for maintenance pending suit;

(c) an order for maintenance pending outcome of proceedings;

(d) an order for periodical payments or lump sum provision as mentioned in section 21(1) of the 1973 Act(a), except an order under section 27(6) of that Act(b);

(e) an order for periodical payments or lump sum provision as mentioned in paragraph 2(1) of Schedule 5 to the 2004 Act, made under Part 1 of Schedule 5 to that Act;

(f) a property adjustment order;

(g) a variation order;

(h) a pension sharing order; or

(i) a pension compensation sharing order;

(“variation order”, “pension compensation sharing order” and “pension sharing order” are defined in rule 9.3.)

For those who would like more of the highly technical detail about application procedure, which is governed by Parts 18 and 19 of the Family Procedure Rules (pages 185 – 189), I recommend that you pause here and read pages 25 – 33 of John Wilson QC’s paper. He describes the application procedure as “similar to the old difference between writ actions and originating summons”.

Practitioners, applying for a financial order on divorce, will note that the forms are not markedly changed and the procedure is much as before. It is set out at Rule 9.12 to 9.17 of the Family Procedure Rules 2010 (pages 82 -85).

Indeed, the law itself has not changed. A financial order may be made because there is power in the court to do so under the Matrimonial Causes Act 1973. I was hopeful that small changes to the law might be introduced, to assist the overriding objective: perhaps interim lump sum orders, and also orders for sale of a property at an interim stage. However that is not (yet) to be. So anyone who wishes to obtain an order for sale, when the other spouse is doggedly refusing and defending divorce proceedings, will still find that the only option is to make an expensive and longwinded application under the Trusts of Land And Appointment Of Trustees Act 1996, just as unmarried couples are obliged to do.

Instead, let’s concentrate on achieving the overriding objective in financial cases. The protocol annexed to Practice Direction 9A provides guidance. It begins with advice as to the tone and content of the first letter to the other party, and the conduct of the case before and after the issue of proceedings. The protocol is not new, it is not lengthy and it is a judicially approved guide as to how best to proceed.

The protocol applies to all applications for a financial remedy, in all types of financial cases. From the outset it is made clear that there are clear advantages to issuing an application to the court and having a court timetable and court-managed process.

Containing costs

Clients often think, wrongly, that costs will always be contained if the case is kept out of court. In truth, that rarely happens. One way to contain costs is to apply to court as quickly as possible, to keep the case court-managed and ensure that both parties fully cooperate. It is frequently a mistake to agree to a voluntary exchange of information because it has no “teeth” and time can be wasted going down a blind alley, particularly if the assets are complicated. There is a manifest difference between dealing with a case in which there is a straightforward source of income and agreed sums of capital, and a case in which there are business interests, offshore assets, trusts, different sources of income, pensions and so on.

My view is that when the finances are likely to prove contentious – for example, when there are going to be likely arguments about asset values, and the incomes and needs of both parties – there is little point in waiting or advising a client to mediate at the beginning. Such a step would only increase the overall costs.

If you are a client, rather than a solicitor, reading the protocol may also help you to understand why your solicitor might not appear as aggressive as you would wish. For example, your solicitor may write a letter to the other side and you, being deeply hurt, don’t think the letter is “tough” enough.

On the other side of the Atlantic, the approach is very different and lawyers will even advertise how aggressive they are, in order to gain clients. I once saw an advertisement for an attorney called “Battling Bill”. Here, however, that kind of approach is heavily frowned upon. It is likely that if your solicitor writes a letter that isn’t “tough” enough, it is because he or she does not wish to prejudice you later in court. When I write letters, in my mind’s eye I am always writing them to the judge. A solicitor must consider the effect of correspondence on the other party, and avoid a “trial by correspondence”. You don’t want a costs order against you, as a result of an overly aggressive and hostile approach.

What is expected of the client?

As I have emphasised throughout this series, a client has a duty to cooperate with the process and remain open to means of settling the case, in order to achieve the overriding objective. That is to enable the court to deal with cases justly, having regard to the welfare issues involved

One final point is this. The pre-action protocol expressly refers to the continuing obligations of the parties to make full, frank and honest disclosure of all material facts documents and other information relevant to the issues.  Solicitors are also reminded of their duty to advise their clients of this obligation, and that breaches risk criminal sanctions under the Fraud Act 2006.  Statements of Truth are now required on some forms, and a solicitor can sign on behalf of a client if authorised. See Practice Direction 17A for more information. I don’t think that I would ever wish to sign on a client’s behalf: it strikes me that this option is likely to be fraught with difficulty.

45 comments

ObiterJ - April 1, 2011 at 12:20pm

I note that the Norgrove Review is planning to look at the whole question of ancillary relief (which I know as mich about as microbiology)!! Will be worth watching what they get up to.

I am sure you are right about the Statements of truth. It would seem more logical that the lawyer gives the relevant advice and the client signs the statement of truth and, at the same time, acknowledges the fact that he has signed it having received advice. “There may be trouble ahead …”

Marilyn Stowe - April 1, 2011 at 1:16pm

Absolutely FABULOUS!
Made my day and cant stop smiling
Thanks so much.

Loes - April 15, 2011 at 4:29pm

Marilyn,

Considering to apply for a variation of periodical payments order. Here are the circumstances:

Financial Order / Decree Absolute November 2009. Because I (wife) + 8 yr old child live abroad judge had to deal with child maintenance. This was fixed at £ 250, nominal maintenance for me fixed at £ 1. Ex-husband is company director and had “adjusted” his salary to suit circumstances. Judge commented in judgement that he did not believe salary disclosed by husband was credible.

By way of division of assets I was awarded monetary claim on company + shares that I held in the company. Ex-h has since done a “pre-pack” Phoenix so I have lost shares and claim and he is all the better for it. In short: division of assets largely frustrated.

With the exception of a short interim-contract I have not been able to find work. We are living for free in sub standard accomodation (think squatting). Judge admitted it wasn’t suitable for us. Can’t afford anything else. Except for equivalent of child benefit I’m not entitled to any social security hand outs.

I have good reasons to believe ex-h’s financial position has improved. Not sure whether that is because of salary increase (he can basically decide his own), dividends or other emoluments.

No savings or family silver left to sell. We really can’t go on living like this.

– Under the new rules, should I surprise my ex-h with a Form A or is there an obligation to reach a settlement? Bear in mind there has been nothing amicable about this settlement, and he would just use any chance to negotiate as a way of protracting and frustrating my aim.

– Is is the Form A (Financial Order) or the Form A1 (Financial Remedy) that I should use.

– Given that I live abroad, I do not have to go through mediation, do I? Which box should I tick on the Form FM1? The situation hasn’t been foreseen?

– Do I need to serve these at Court that dealth with initial Ancillary Relief or can I choose another more convenient for me to travel to (and cheaper because I could stay with friends instead of hotel). Or would it be a disadvantage having a new Court look at the case.

– No legal aid available to me so I will have to represent myself again. Ex-h will probably beusing expensive lawyers and flouting disclosure rules as he did last time. Any suggestions as to how I could improve my chances of success would be welcome. Eg does is matter what source of his income or funds is? If he uses company car, does that count towards his income? Should Judge roughly apply 15% of income as per CSA rules?

– Lastly, should Judge bear in mind that I am at disadvantage compared to someone living in UK who could use CSA. Can’t go to Court every year to ask for variation – Judge would get annoyed and I wouldn’t be able to cope emotionally either. Can I expect judge to build in upwards margin to allow for this? Can I ask Judge to force ex-h to disclose salary information, bank statements etc on a regular basis?

Thanks for your comments and your great blog!

Lukey - April 16, 2011 at 12:18am

“With the exception of a short interim-contract I have not been able to find work. We are living for free in sub standard accomodation (think squatting). Judge admitted it wasn’t suitable for us. Can’t afford anything else. Except for equivalent of child benefit I’m not entitled to any social security hand outs.”
===========================================

I’ve got an idea Loes, why don’t you STOP living abroad, then your living conditions will be better, you can use the CSA to harass your ex-husband and the kid can see his father.

Just a thought…

Loes - April 17, 2011 at 11:53pm

You are judging without knowing the facts Lukey.

It wasn’t exactly a free choice to leave the UK. It happens to be a very expensive place to live without an income and any support systems to fall back on. I very much wish we could afford to come back but we are trapped.

Sadly, children are not top of every father’s list when they start divorce procedures. Some fathers have other priorities Lukey. And sadly, not all fathers have a sense of financial responsibility towards their children either.

Had any of that crossed your mind when you shot off your response?

Liz Bell - April 18, 2011 at 5:21pm

Loes: Thank you for your comments. Mrs Stowe has asked me to reply. I would suggest that you do a search at Companies House first, to have a look at the accounts for the business your former husband is involved with to see how the company is doing. If you are seeking a variation to the payments you currently receive it might be an idea to try and open the lines of communication by writing to him first setting out your budget requirements and the amount you require from him. If he then does not respond favourably and it becomes necessary for you to issue proceedings then depending on the outcome you may be able to recover some of your costs from him.

If you do have to issue proceedings then the form A is the correct form to use and the fee is £240. In terms of which Court to use in the first instance the variation proceedings should be issued in the Court where the first set of proceedings took place. However, you may be able to make an application to that Court for the proceedings to be transferred to a Court more convenient for you and you would have to set out your reasons for the transfer and there is no guarantee you would be successful, but it is certainly worth a try! For the FM1 form because you live abroad you could complete part 4 of that form and say that due to you being abroad, you have not attended a mediation assessment meeting because it is simply not practical to do so.

Kind regards

Liz Bell
(Solicitor, Stowe Family Law)

Loes - April 22, 2011 at 10:12am

Liz,

Many thanks for your reply. The approach you suggest makes sense. Even though I don’t expect ex-h to voluntarily increase maintenance, by following your advice I will have shown my good intent.

A few more questions for you.

1. Does it make sense to tick the box “order for maintenance pending suit / outcome of proceedings”. Are there any strategic, procedural or financial disadvantages in ticking this box?

2. Ex-h financial situation will only be clear to me after his disclosure (if I’m lucky…). How about ticking the box “lump sum order”? Does that mean there will then be a “clean break” as far as my maintenance is concerned? Not sure if I want that as my financial future is far from certain. Can I just drop that part of the application if it turns out to be irrealistic, inappropriate or not in my interest at this stage?

Many thanks again,

3. Will the judge bear in mind that – as the company director – my ex-h can effectively set his own salary / remuneration? Is what he could earn in the market (if he chose to) at all relevant in this respect?

Lukey - May 4, 2011 at 8:54pm

“- Lastly, should Judge bear in mind that I am at disadvantage compared to someone living in UK who could use CSA.”

You the said the above in your post. You also said:

“No savings or family silver left to sell. We really can’t go on living like this.”

and this:

“With the exception of a short interim-contract I have not been able to find work. We are living for free in sub standard accomodation (think squatting). ”

so I don’t see at all how you are trapped abroad at all.

It is better for your child to and have a relationship with their father and you being in the UK would definitely help that wouldn’t it ? If you are going to try and take him for more money and your life abroad is so terrible then it seems a reasonable thing to do for all parties.

June - May 19, 2011 at 8:15pm

I have today receivied a letter from my ex husbands solicitor.

He is asking in this letter for confirmation that I have served a copy of my application for Ancillary Relief with my ex husbands’ pension provider.

My questions are:

Do I have to do this or does my ex?

Does it need to be done before my first Appointment at court?, which is on next Monday.

Regards

June

James Thornton - May 20, 2011 at 1:48pm

June,

You are obliged to serve a copy of Form A on the person responsible for the pension arrangement upon making the application under Family Proceedure Rules 2010 r9.31, if you are seeking a pension sharing order. You should therefore send immediately to your ex husbands pension trustees/scheme administrator.

Regards,

James Thornton
Stowe Family Law

Bonny - September 18, 2011 at 4:28pm

Dear Marilyn,

I have been trawling the internet looking for help, your blog is very informative.

My ex has applied to court for a downward variation of his maintenance order paid to me. He initially suggested a drop from £550 a month to just £50, an offer I declined. He proceeded to put in form A

A court timetable was set for form E to be exchanged for Sept, first appointment in October,

Now he is asking for my consent for an adjournment until next march as the annuity he claimed he was relying on to pay my maintenance had resumed to him, in March he would reassess the situation.

I wrote back that I would agree to this with the terms he would write to me prior to restoring proceedings and that if no application is made to restore by April the court would then dismiss the application.

He has now replied through his solicitors saying that in order to adjourn a new timetable has to be drafted to the court requiring my signature. Is this the case? If I do not reply with the signed form within 7 days they would have to make an On Notice rather than a Consent Application to the court.

My ex is a retired solicitor himself so I am at a disadvantage in my basic knowledge.Can you explain this terminology to me? (On notice)

Also your general thoughts? I am acting in person with a bit of advice from friends (legal)

Thanks in advance

Marilyn Stowe - September 18, 2011 at 9:17pm

Dear Bonny
Thank you for your comments. I get requests like this very frequently and just can’t understand why.
What is it that makes some people think they can handle an application that would leave them on the face of it penniless:- without any serious legal advice?
What on earth motivates them? Would they pull out their own teeth? Operate on themselves surgically? Why do they think they can run a serious legal case without any real advice with a real chance of penury if it goes wrong?
You do need specialist advice on what you say.
I think an application has been issued which your ex is now clearly worried about. Does he think a court might capitalise your maintenance? Award you more? Not do anything and cost him a lot of money for nothing? Have you considered any of these options? Have you cross applied?
I’m not a mind reader and Ive seen no papers myself so I just don’t know.
What I do know is that I would be interested to see his Form E before agreeing to anything to check out his position.
And so:- please, go and see a specialist family lawyer. At least for initial advice – but please go.

Linda Crichton - January 17, 2012 at 2:06pm

In a schedule 1 application for housing costs and school fees should both parties now complete a Form E. In my case I have completed a Form E but the respondent has only completed Form E1W as they feel Form E is only for parties who were married. Form E1W is nowhere as extensive and I do not feel we have a true and frank disclosure.

Gee - March 14, 2012 at 12:48pm

> 3rd Application under Children Act in November 2010 due to father’s regular breaches of Orders requiring him to make periodic payments for his child.
> M + F never married.
> F had earned and spent ( failed to provide adequate disclosure so dont know on what) huge sums of money in preceding 4 years or so, and accumulated huge debts
> 5 weeks before substantive hearing F transferred all his assets to his wife ( 1/2 share in matrimonial home, this for no value). F’s solicitors had confirmed in writing that this was “to avoid F’s creditors”( M being 1 of them)
> M forced to accept reduced periodic payments in November 2010(due to F having accumulated large debts), which F has since failed to pay yet again, and substantial arrears have accrued
> M taking enforcement proceedings in County Court, which have now been consolidated with Family Case. M acting in person as cant afford legal representation
> does District Judge have power under FPR to Order transfer of 1/2 share in matrimonial home back from F’s wife to F as a “reviewable disposition” and/or would Judge have any inherent jurisdiction to do so and then Order a charge against it/force sale due to F’s repeated breaches of Court Orders and financial irresponsibility towards his child????
Any useful suggestions/caselaw??

JC - April 25, 2013 at 11:38am

I am on the receiving end of action by a very unscrupulous solicitor and my extremely scorned ex. Despite having a contact order this is being breached I am also fighting the CSA, now have a non mol where I have to wait 3 months to defend it and now I have received an application for financial remedy where the mother is try to transfer my home to the children. Any advice on how to deal with the application without having to wait for the hearing?

Marilyn Stowe - April 25, 2013 at 12:44pm

Dear JC
I think you need a solicitor to represent you, explain all your options based on all your circumstances which I dont have, and get some objective perspective on all the problems that are affecting you right now.
You have a non molestation order made against you which suggests some degree of violence/hostility to your ex and this needs sorting, as do the finances.
CSA Options might be of assistance in relation to your problems with the CSA.
I dont understand why your ex is applying to transfer your half share of the house to the children. Your solicitor will learn more from you about this and advise you.
Regards
Marilyn

Favour - July 10, 2013 at 4:46pm

My abusive ex-husband has been given a non-molestation and occupation order by the court. His name is in the mortgage even though he refused to move in with us on completion of the mortgage 7 years ago and got married to another woman abroad instead.
He sneaked himself back into the house two years ago and have been paying for the mortgage. He doesn’t pay for anything else. His mission is to sale the property and i do not want to sale my house. He made away with my council flat 8 years ago and now he wants us to sale the property where I live with my children.
I want to apply for financial remedies proceedings to get his name out of the property. Do you think this will work?

Please advise me.

Thank you

Favour

Rose - July 30, 2013 at 2:41pm

Hello,please advise. What happens if a respondent does not respond to my application for financial order. Would everything go in my favour. Plus the properties are in my husband’s name and we were married for 16 years. Am i eligible for 50% share of these properties. Please help.

Marilyn Stowe - July 30, 2013 at 4:14pm

Dear Rose
If the respondent doesn’t take part the court will want to know why and satisfy itself that he does know but isn’t bothered before making the order you are asking for. It doesn’t matter who owns the properties, all property of both parties is available to be shared.
Best wishes
Marilyn

Mark - August 1, 2013 at 10:08am

I was forced to pay the CSA, when my exwife had orignally agreed that if I maintained 3 of the major household debts the CSA would not be contacted due to the value of the bills.
I maintained these payments for 4 months until I received a call from the CSA saying that a claim had been made against me.
I explained my financial situation that if they took their money then the 2 debts secured against the property that my exwife and 3 kids lived in would be put in jeopardy they said that the CSA payments would be main priority.
I have since made a proposal to my ex to allow the bills to be partially paid by her using the CSA money, but the agreement has been written into a Financial Settlement/Consent Order that leaves me with nothing.
The mortgage is solely in my name but the order requests that all legal rights are handed over.
i have been threatened with Financial Remedy will this bring the overall issue to a conclusion and the assets be equally shared as my ex has pretty been living bill free for 7 months ??
Thanks
Mark

Mandy - September 2, 2013 at 8:29am

Hi,I have been issues a divorce and a financial order by X County Court on 12.06.2013 by which my husband has to pay me lump sum and divorce expenses by 4pm on the 24th of july 2013.
He did not obey the order and I applied to the County Court for charging or execution order but the DJ answered me that this is a misconceived application and there is a final financial order so i need to take an enforcement action if order has not been complied with.
Pls advice how do I apply for this enforcement and where?

Marilyn Stowe - September 2, 2013 at 12:47pm

Dear Mandy
The court rejected your application because I suspect it is not sufficiently specific about what you want. Your solicitor should be able to advise you how to enforce the order. What you have to do, is think about how you were intended to get paid out of all the assets. How was he intended to pay you? Where are the assets? In a bank? In property? Then you have to apply for a specific order over the asset in question that will get you the payment that is due to you. I don’t know how much is involved so cant say what’s appropriate. Sometimes issuing a judgement summons is the fastest way, providing you have evidence he can pay and wont. Alternatively sending a bailiff in to get the money can be used but it depends how much is involved. You can apply for a charging order over property and when you have it made absolute can apply for an order for sale.
So do also think about freezing the monies/protecting any property to protect your order.
I’m very much in the dark here as I don’t have enough information, do go and see your solicitor and please don’t delay any longer.
Regards
Marilyn

Sally - November 28, 2013 at 11:46pm

Dear Marilyn,
My husband left me 14 months ago. Since then my physical, but in particular, my mental health has deteriorated to such a degree I was admitted to hospital and had a nervous breakdown. I am signed off work from Dec 12 to Dec 13, but my psychiatrist will extend this as I am still unwell. I am therefore unable to earn yet my husband won’t give me a penny – there are no children involved. He earns approx £100,000 pa. I have been advised that getting a maintenance pending suit order is the best route. Would you agree and how likely is it I will be awarded some (how much and for how long?) maintenance? I look forward to your advice,
Regards
Sally

Mandy - January 24, 2014 at 3:24pm

Dear Marilyn,

I received an ancillary relief order in June 2011 when I divorced my husband.
We had no equity in our properties, no pension, no savings; all we had was his earnings from employment. My ex husband was ordered to pay periodical maintenance payments every month on the 28th ( Maintenance for the children was awarded until age 18 & I was awarded Spousal Maintenance until June 2017).
In May 2013, he was released from his job in premiership football management and received a settlement (the amount of this payoff unknown to me). My ex husband continued to pay maintenance until September 2013. He has not paid any maintenance since then. Last week he obtained a new job (He used to earn £100K annually) that only pays him £60K annually.
He is currently threatening to take me back into court to lower the amount of my award, as his income is now substantially lower. Obviously, the amount of child maintenance I will receive if he does this will be dependant on his income. Its just I worry about two things:
1) My spousal maintenance has a time limit until July 2017 and says specifically that I cannot extend the date. As his income has changed, will he be able to go in now and lower that amount although I will not be able to alter the timeframe? If the total of all my maintenance under the original order totals a remaining £40,000 to be paid, will they still order him to pay the amount in the timeframe provided in the original order or will they indeed lower the amount and still keep July 2017 as the end date?
2) As he has not paid me since Sep 2014, my order currently entitles me to £13,000. How do I go about collecting the money as he has no property, no pension, only this new job. And since he hasn’t been paying, the funds I have access to are minimal. Do I have to apply to the courts for an enforcement order? Is the process of collecting this money something I can do myself without harming the outcome?

Marilyn Stowe - January 26, 2014 at 1:09pm

Dear Mandy
The problem with maintenance is it can go up and down and it isn’t guaranteed, eg if people hit hard times. If he can’t afford to pay then he has to apply to reduce it. Until them you can enforce the order.
Regards
Marilyn.

Mr H - January 26, 2014 at 7:06pm

Dear Marilyn

My wife and married in July 2008 and separated in Sept 2012. We were living together since 2003. I moved out of the FMH in Jan 2013. We have been paying the mortgage equally since I moved out. I took on the additional cost of rented accommodation, which along with maintenance is crippling (Judge set maintenance at £300). We have 3 children (10, 6 and 3 yrs old- oldest is a girl). My wife is French and has successfully applied for leave to remove to France. She recklessly spent in excess of £50k on legal fees (borrowing heavily from family and banks, as she couldn’t afford this). I was a LIP throughout up until final trial. Surprisingly, the Judge let her take the 3 children to France to be closer to her side of the family even though she doesn’t have any employment out there. She has worked throughout our marriage and gave up a job paying £33k a 10% bonus by choice. I earn £10k more than she does. She has a small pension (approx £8k since 2000; mine is approx. £33k since 2007. I didn’t have one before we met). She is living with her parents in France until she “sorts herself out”. The FMH is sitting empty and I will moving back in at the end of March. There is £81k of equity in the FMH. these are the only assets. The rest are significant debts on both sides (I have £7k credit card and £3k car loan outstanding). I currently rent a 2 bed flat, which is unsuitable for when the children come and stay with me in the UK (132 days a year). I have offered to remortgage and buy out her share by giving her 60% of the equity (that’s my max borrowing capacity). She has refused, as she wants pension and spousal maintenance payments. She wants to sell the FMH and have a higher percentage share (but has provided no evidence of her “needs”). The FMH is a 2 bed semi worth £240k. A large 4 bed detached house is 170,000 euros in France. Similar properties to rent are 650 euros. Is my offer reasonable, as I am now considering applying for Ancillary relief at a lower level of 50% with pension equalization due to her refusal of my initial offer? Also, how can I ensure that she only gets half of my current pension value and not half of the maturity value, as this will be significantly more in 20 yrs time. Shall I simply stop paying in to my pension and take out an alternative investment?

Robert James - February 27, 2014 at 11:26pm

Hi Marilyn
My partner and I were never married and although I’ve known her for 25 years meeting in 1989 (prior to her marriage and divorce to another chap for a 4-year period in the 90’s), we started a relationship in 2000 and had 2 children now aged 9 and 12. Technically we separated in Jan 2008 although we currently share the same home (separate rooms etc). My partner has found it hard to cope with the fact that I have other relationships and now wants to separate. She had started proceedings against me a periodic payment order; lump sum order; secured periodical payments order; settlement of property for the benefit of the children and; a transfer of property for the benefits of the children. Via her solicitors (legal aid funded), she has put Unilateral Notices on my home and my flat (investment property). I have been a home owner since 1987 and solely own both the house we live in and the investment flat both purchased before our relationship started and she has not contributed to the mortgages, repair or maintenance and I don’t believe she has a claim on my properties(?).

My partner hasn’t worked for the last 8 years preferring to ‘care for the children’ and continues to make no effort to work or help me support the family, financially. She is understandably bitter and hurt about the breakdown of our relationship and point blank refuses to discuss our separation or attend an arranged mediation session. I complain that my income cannot support our current lifestyle and whilst living separately in our home isn’t ideal, it was not my intention to separate whilst the children are still in primary/secondary school.

I have repeated advised her solicitors that I have and will continue to support my beautiful children 100% financially and keep them in my 4 bed-roomed home until they are out of full time education and beyond, but would happily share custody with my partners on a 50:50 basis. I have also offered to give her £2000 to assist with moving out expenses but that she would need to work and support herself or claim state benefits/housing services. This has been refused and our court date is 18th March 2014. As we were never married nor in a civil partnership and that I’m happy to financially support and house my children, do I need to be concerned that I will be instructed to sell one of my properties or to move out of my own home simply because my ex-partner won’t work and is angry with me? My income is approx. £500 PCM less than our outgoings and it’s a struggle. I do have about £20k in the bank from a recent compromise payment after losing my job, and use this to supplement my income as I’m in a lower paid job and only 1-month into a 6-months probationary period. Is this money at risk given the pending court action. Oh, I do an evening job at my local gym and recently stopped a third job doing personal training on weekends after over 5 years.

I have been threatened with an Occupation order and barred from discussion the case with her at home or face accusations of harassment. I have never been violent or aggressive, I don’t drink, smoke or gamble and I totally adore my children!

Help please!

Thanks, Rob

Marilyn Stowe - February 27, 2014 at 11:49pm

Dear Rob
I think you need detailed legal advice on the state of play to date and legal representation at the hearing. I suggest you go and see a solicitor who can advise you about what seems to be a Schedule 1 Children Act claim and the appropriate tactics for you to adopt.
Simply putting your head in the sand won’t work best for you. You need to check out exactly what your risk is and there isn’t enough info given for me to take a view. Some people are ordered to provide a home until the children leave school, some aren’t. Some are ordered to pay a lump sum as well and some aren’t. Child support is usually claimed through the CMS. Top up payments through the court apply to the very wealthy.
You are correct in that being unmarried she has no claim against you personally and any housing she does get will be for the benefit of the children and most likely only last during the children’s minority,(sometimes until the finish tertiary education or she cohabits or remarries) but it’s the overall extent of your potential provision that you need advise about and perhaps also to negotiate a deal. You need protection and somewhere to live too. If you don’t know the law and aren’t legally represented in a tricky area you could be making a big mistake.
Regards
Marilyn

Robert James - February 27, 2014 at 11:58pm

Hi Marilyn

Another question if I may, the county court which is hearing the case for which my ex-partner is seeking a lump sum, periodic payments and settlement/transfer of property etc., Judge has asked me to submit Financial Settlement Form E. As we were never married or in a civil partnership and as I am the sole owner of the home and investment flat, do I need to complete Form E or should I refuse or submit Form E1?

I have already submitted Form C7, C1, C1A, C100, FM1 as I’d rather keep my two children than be ordered to leave my own home following the breakdown of a 8-year relationship.

Cheers

Rob

melanie - March 3, 2014 at 7:33am

Dear Marilyn. My daughters father was paying maintenance through csa for most of her life until it stopped last year, the csa can no longer help because he works abroad but comes back to his house in UK at weekends. Can I apply to the courts for financial relief on behalf of my child if not what order could I make?. I am not sure where he is working abroad but suspect it is Germany. I can not afford a solicitor.
Kind regards
Melanie

Holly Lamb - March 5, 2014 at 4:27pm

Rob:

Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law’s London office.

It is not clear from your comment what proceedings are ongoing. If you were never married, I presume your former partner has applied to the court to resolve financial matters in relation to your children.

Whenever the court is asked to deal with financial matters, a Judge will require each party to provide full and frank disclosure and this is normally achieved by both parties completing, filing and exchanging Forms E or Forms E1. Which Form the parties complete depends on the circumstances and what orders are being applied for. If your former partner is applying to the court to resolve financial matters under Schedule 1 of the Children Act 1989, this is classified as an application for a financial remedy (as opposed to a financial order) under the Family Procedure Rules.

If this is the case, I expect that you will need to complete a Form E1 rather than a Form E. However you should seek clarification from the court before doing so, as you have technically been ordered to file a Form E.

While you are waiting for a response, I would suggest that you begin to draft the Form E to ensure that you adhere to the court timetable. The two Forms are extremely similar so you will be able to transfer the information easily to a Form E1 if the court subsequently confirms that this is the correct form to use.

Best wishes,

Holly

mike h - March 17, 2014 at 12:48pm

Hi Marilyn
my wife and i have been divorced over 8 years now there where no financial arrangements in place and she said she did not wish to claim for my pension i recieved the absolute on june 5th2006 .
In one of the solicitors letters it states that mrs xxx does not wish to persue her claim for costs in the main suit but doesnt mention anything about my pension..
we have always been ammicable and havea statement of arrangements in place regarding the children and it states on there that she will not need a court order for costs of the child as a private arrangement is in place.
Now she has got nasty and after a 50/50 arrangement that we have always had she suddenly want csa. we still have the same arrangements and i still see my daughter 15 50 percent of the time can she apply to the csa and also how would find out if she ever made a claim for my pension.. i entered into voluntary disclosure and submitted a cetv of my pension but never heard anything back even after the absolute had been received please could you advise
mike

Luke - March 17, 2014 at 2:43pm

“Now she has got nasty and after a 50/50 arrangement that we have always had she suddenly want csa.”
===================================

I cannot comment on the rights and wrongs of the case because I don’t know, and I am not saying that one gender is generally more moral than the other – from an evolutionary standpoint that is extremely unlikely in my opinion – but here’s the thing, when your partner says you should get married because ‘I would never act badly towards you’ that is complete tosh. Your definition of ‘bad’ in the future may equal their ‘deserved’ !

You have NO IDEA what will happen in the future, you’ll change, they’ll change and the situation will change. All you do know is if you DON’T sign the marriage certificate you’ll be in a much MUCH safer position if and when they come for your stuff 🙂

Rachel - March 26, 2014 at 4:40pm

Hi, please help, I have been divorced from my ex husband since 1997, I remarried in 2000. I am a council tenant and I am struggling to get the property in my married name now. My solicitor is saying that she wasn’t instructed to deal with any financial issues during the divorce proceedings and says that I should have instructed her to do so, so that a property adjustment order could have been made to the court. My ex husband has remarried has his own property and the council are saying I need the property adjustment order. I cant transfer/exchange my tenancy until I have this. I cannot approach my ex-husband as I do not know where he resides and even if I did I still don’t want to as the parting as well as the relationship was quite volatile on his part. I feel that I should be entitled to have the tenancy in my new married name now, I have been a tenant in the property for 25 years and my ex hasn’t been there for 18 years, hopefully you can advise, many thanks Rachel

Marilyn Stowe - May 16, 2014 at 12:31pm

Dear Rachel
My apologies for the delay in replying to you. Ive only just seen your question and its one that can be answered easily. You can make an application to the court by issuing a Form A in your divorce proceedings, for a transfer of tenancy order. The court has power to dispense with service if you cant find him. I would have thought given what you write, this is the type of case a Judge would zip through the process.
Regards
Marilyn

Dea Marilyn - May 16, 2014 at 8:56am

My French wife and I have been through a messy Court battle (which she won of course) for her to relocate the children to France. She left a well paid job to be unemployed closer to her family in France. Contact has been ok so far in accordance with the Court Order. I made an offer for her to have 60% equity in the FMH in which I have recently moved back into after her relocating with the children. I have recently met a new partner and ever since her behaviour has been one of employing stalling tactics (no doubt so that i move in with her so she can claim more money from me). I have made numerous attempts to settle through mediiation. She has refused all my offers such that I have had to apply to the Court for a financial order. The PRFD have listed the first hearing for 22nd July. She is again represented. I am a L.I.P again. Her sol has written saying that she is on a paid family holiday at that time and is asking for my consent to vacate. I believe this to be yet another stalling tactic. My question is what impact will my refusal have on the subsequent proceeedings? I am going to offer to collect her from Calais the night before the hearing (she’ll stay with friends overnight) and i’ll drop her straight back in Calais after the hearing so that we can keep the hearing date. Is this reasonable, as I want the mattter sorted, as my life is on hold until i know whether i will lose the house or not in the divorce settlement? I really look forward to hearing from you. Regards, Hugh

Marilyn Stowe - May 16, 2014 at 4:11pm

Dear Hugh
Thanks for your question. Id advise you to act reasonably. Id also advise you to see a solicitor and have a full discussion about what you should be aiming to achieve and then doing it.
Regards
Marilyn

Jackie - May 16, 2014 at 3:48pm

Hi Marilyn

I am hoping you can help with a bit of off the cuff advice. My ex and I divorced just over 3 years ago with the financial consent order being stamped in September 2011. We have two children and three properties, one jointly owned and one in each of our sole names (mine in the UK, lived in by his parents and his in Cyprus) .

Since the Order, the ex has failed to maintain contact with the kids (got married again and moved countries, rarely seems them and never for more than a few hours when he does), he has failed to pay his share of the additional expenses for the upkeep of the family home, stopping at paying only the mortgage, despite being required by the order to pay half of buildings insurance and decorating etc). He has not taken steps to rehouse his mum and dad which I dont have the heart to do as they are still close to their grandchildren and he has refused to put the holiday home on the market claimning that he has no buyer and there is no market.

I have recently decided to sell the family home to move closer to a school for my girls (one of whom has since been diagnosed with various learning difficulties). He is refusing to sign a TR1 unless the consent order is changed to give him my rights to the holiday home in exchange for his rights to half of the equity in the FMH.

I have no problem with that and even drafted an order to go to the Court to vary the original consent order but the Court returned it and said seek advice and he is refusing to pay half of the advice cost.

He agreed for the house to go on the market and I am now in a chain but dont know what to do to progress it without costing myself a lot of money. What can I do. Is there a way to get this done without a consent order???

J

Marilyn Stowe - May 16, 2014 at 4:07pm

Dear Jackie
If he wont sign the TR1 the Judge will, on production of a copy of the original order.
Regards
Marilyn

Hugh - May 19, 2014 at 5:28pm

Hi Marilyn.

Thanks for your advice, which is duly noted. unfortunately, I cannot afford a solicitor, so will run the case on my own. I shall do my best to continue to act reasonably but it is frustrating when I have to put up with her blatant tactics of deceiving and not telling the truth and as soon as i say otherwise I’m the one that gets criticised in Court by the Judge. I have to say that I have become very dissillussioned with the legal system (even though i am legally qualified myself) but i feel that i have no alternative but to start financial proceedings as for some reason she’d rather stall at the moment (i think she’s waiting on house prices going up so she can settle for more of the FMH, and she’s pushing me for our children to meet my new partner when that is my decision and not hers – it’s not yet a committed relationship anyway. Again, it’s all calculated for her to argue in her favour in Court that I have a new partner and shared budgets etc etc).
MAny thanks

Hugh

sasere - October 2, 2014 at 11:20pm

Hi
I have been searching the net to try to gain some brief answers to my difficult situation.
I started proceedings for divorce in November 2012 and have the Nisi. As you are aware I then had to go through mediation. He refused to provide details of his bank accounts until I insisted on court action. I found that he had withdrawn money of up to £80K At FDR it was considered the relationship has been for over 25 years and although only married for * years things should be split equally. we came to an agreement of sorts but he wanted to think about it. the order was that he should continue to pay the mortgage and me everything else. This includes everything for the children
I have made it clear from the onset that I want to buy him out and offered the same as what has been offered by potential buyers but he has refused.
I have had a home buyers report which states that the property is not worth as much as been offered so I have offered less by way of settlement and this has obviously been refused.
My buying him out relied on good credit. I have just discovered that he has not paid the mortgage and we have arrears. he has been hiding the letters. Our mortgage company will not even consider an application from me as it would be refused and any application to another company would be refused for at least 12 months.
can i make any order to remove him and pay the mortgage for 12months so that i can regain the credit to then buy him out ?
Do i have to remain living under the same roof as this man?

Name Witheld - August 1, 2015 at 2:24am

Dear Marilyn,

I had a Heads of Agreement in court in sept 2014, my ex and i were meant to proceed to complete a consent order based on the Heads of Agreements with solicitors and present to court within 28days.

I was summon to the court to answer queries on allegation of refusing to sign a TR1 form, in court I tried to explain to the judge that I have never been presented with a TR1 to sign and the fact that the said order has not been made an order to my knowledge but a mutual heads of agreement in the presence of a judge that requires mutual agreements to be translated to legal agreements by our solicitor(s).

The judge will not hear my side of the story but only insisted that I sign the TR1 form within seven days, I have 4 days to comply but is this right or fair on me pls ?

How will complying and signing a TR1 form affect my right on the joint property in the long run? what should I do now ? – many thanks for your help –

just to mention buying and reading your book [DIVORCE AND SPLITTING UP] helped me with a lots of answers during my very difficult seperation and divorce. thank you for all the help and guidiance you provide

Phillip - November 16, 2015 at 6:04am

Dear Marilyn

I have a question concerning Financial Remedy Orders.. I live in the Sultanate of Oman (as does my ex wife) and we were married in the Philippines. My ex wife is seeking a UK Financial Remedy Order against me. The whole scenario is very very complex.

My question is : If a UK Financial Remedy Order is made against me do I have to pay this as my domicile is in Oman ? If indeed I do have to pay this and refuse to what action can be taken against me ? Is the Order enforceable here in the Middle East ?

D - November 1, 2016 at 4:06pm

Dear Marilyn,
I would appreciate any advice you could give me on how to proceed with this matter…..my ex husband denied having a private pension SIPP, but I revealed it to the courts, he then objected to sharing it despite directions given, then offered a paltry share so I obtained a court order for an actuary report at a four figure cost. The financial remedy went with the percentage share as suggested by the actuary report and finally the annexe went to the pension company. The ex refused to pay the admin costs involved for the split and delayed right up to the eleventh hour when he was notified of my intent to enforce the order, hen he paid for the split. Finally I had money placed in my new fund…..however between the actuary report and the actual split, at some unknown point he depleted the SIPP of thousands, so the pension company did the correct percentage split of just the proceeds that were left. Leaving me with considerably less that the actuary report had suggested, and less than the paltry sum he started with offering when his lies were uncovered. Your thoughts on the matter….

IR - March 28, 2017 at 6:02pm

Dear Marilyn,

I wonder if you could please advise me as to what I should do. I got divorced in 2010 and my ex wife stayed in our property. We had a joint mortgage and the mortgage company refused to take me off the mortgage. We changed the tenancy to he tenants in common and I was awarded a 5% interest in the property. This was stated in a general form of order ancillery relief. It was stated that the property could not be sold without prior written consent of both parties unless one of three things happened ..one of which was upon my ex wife’s death. Her children are dealing with the estate, but my ex wife passed anyway in July 2016. They got probate in early January but to date the property still has not been sold. What should I do as I want to sell the property to get my name off the mortgage. I hiugh there may be a timescale that they have to adhere to but now I’m not so sure? My fear is that they will not sell and that my name will remain on the mortgage. My ex wife was also solely responsible for the mortgage payments but now I have to pay them, although her children are transferring the money.

Please help,

Kind regards

IR

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