If there is a CMS assessment is it a good idea to include the amount in a consent order?

This question was asked today. Here is some information which may help you decide:

  • Agreed family based arrangements are often incorporated into consent orders because it is a written record of the agreement and is enforceable through the court system for at least a year.
  • It can be useful to have a legally binding agreement if the receiving parent is applying for a mortgage.
  • Child maintenance can only be included in a consent order when it is agreed. If there has been a CMS assessment this suggests that the amount of child support was not agreed at some point and enforcement action may be needed.
  • If there is a need to enforce child support the CMS has far reaching powers and it is probably cheaper to go down that route than through the court.
  • 12 months after a consent order has been made either parent can ask the CMS to make an assessment again.
  • A statutory CMS assessment (Direct Pay) is also legally binding and is as likely to be taken into account by some mortgage lenders as an agreed order for maintenance. The best way to find out is to ask your lender.

 

 

 

Divorce services to move online in 2017

The President of the Family Division Sir James Munby has told barristers that there are plans to move the court process for divorce completely online in 2017.

How will this work?

Apparently we will fill in an online form and the information will then be used to prepare the divorce petition.

Watch this space.

 

Missing property box on Form A?

The form A application for a financial order asks for the address of any property which is the subject of an application for a property adjustment order to be inserted “in the box below”.

There are two issues with this.

First of all as you will see to the left, there isn’t a box.

Secondly there isn’t always a property even when this box has been ticked. Why not? Well it’s because you may just be asking the court to dismiss future claims rather than make an order now.

And yet I have today heard of Southampton divorce centre sending back a consent application because the property address was not filled in, in the box that isn’t there.

There are currently delays of 4-6 weeks to have post looked at, I understand, at Southampton and so it is pretty frustrating when this happens.

It is my understanding that all consent orders are supposed to be considered by a District Judge not an unqualified member of court staff. How realistic this is in the long term I don’t know. I don’t know how many District Judges they have moved to each centre. But given that there were county courts (many with several District Judges sitting in one place) in 92 towns and cities and now there are only 11 divorce centres, which have over the last few months started receiving all new divorce applications, the caseload will surely be too great.

They won’t be dealing with contested cases but, whilst we may have the impression from the media that all divorces end up in court, the opposite is in fact true. Every year the number of consent orders approved by the court service is more than double those which are initially contested and ten times the number which actually go to trial.

So it seems obvious that as the months go by the new divorce centres, which are now handling all routine consent orders, are going to have their work cut out.

It seem equally clear that not all consent orders can or will pass directly to the District Judges. There will presumably have to be preliminary checking – which I understand will, in the long run, speed up the process. But this is where I think there is much work still to be done at HMCTS. Newly trained but still inexperienced staff are dealing with forms which, let’s be honest, are barely fit for purpose.

Take the Form A. Somewhere in the transition from a single page form to a 13 page form (10 of which are entirely unnecessary for a consent order) things seem to have become muddled. When I read the statistics about 40% of all divorce forms being rejected because they are incorrectly filled in I wonder what else can be expected, when the forms are so poorly set out and the “notes for guidance” do anything but guide.

Please HMCTS can you give the box back if you want it to be filled in rather than just reject the forms, and please,please whilst you’re at it, can we have a single page form A for consent orders?

I advise anyone submitting a consent order over the next few months to be patient because things could get a lot slower before they begin to improve.

 

 

 

Bury St Edmunds Divorce Centre update

The divorce centre at Bury St Edmunds currently reports that it is rejecting up to 40% of the divorce petitions sent to it because of errors.

The most common errors are the names on the petition and correct signature and date.

They are working on a checklist to help people preparing their own divorce paperwork.

All I want is a clean break. Can we transfer the house first?

iStock_000008511772XSmall - houseThis is one of the most common questions I am asked.

Best practice is to have the order first and I will try to explain why.

Let’s take a typical example:

Mr and Mrs Williams are getting a divorce. They’ve been separated for a while and they’ve agreed that Mr Williams will stay in the family home and buy out his wife. He has been to a financial adviser and applied for a mortgage. The value of the house and the amount he is paying to his wife has been agreed.

All is going to plan and the couple are reasonably amicable. They both want to draw a line under their finances after the transaction has completed and they know that the best way to do this is to have a consent order in which there will be “clean break” clauses.

This type of order means that there can be no further claims for more money or property between each of them in the future, even after either of them dies.

But, in order to obtain the order, not only do Mr and Mrs Williams have to agree to the terms, the District Judge has to agree that the terms are fair to them both as well. Continue reading “All I want is a clean break. Can we transfer the house first?”

Is stamp duty payable on transfers of property after a divorce/civil partnership dissolution?

Look after the pennies and the pounds stack up

Transfers of property between married couples or civil partners who are separating or divorcing/dissolving their civil partnership are exempt from stamp duty.

More details can be found on the government’s website here.

This information does not constitute legal advice and you should not rely upon it as such. I cannot be responsible for any losses you may suffer as a result of failing to take independent legal advice if you are in any doubt about your legal rights and obligations.

 

Sharland – it’s not about the money, it’s about principle

It’s not often that I believe someone who’s in a position where they have to say “it’s not about the money”. It generally is. But I’m leaning towards believing Mrs Sharland.

The full judgment in the Sharland v Sharland case is here. Some media are reporting that Mrs Sharland received £10million as a settlement when her husband was worth around £600million. This is not in fact the case.

Mr and Mrs Sharland settled their case part way through the final hearing after they had both given evidence in court but before some of their other witnesses (in this case their respective valuers of the husband’s business) had given their evidence.

It isn’t uncommon for people to settle part way through a hearing. But not a lot of money is saved settling at that stage in legal fees etc and so certainly Mr and Mrs Sharland must’ve thought it was better, for some other reason, to settle than to continue with the hearing and have a judge decide how the assets should be divided. Continue reading “Sharland – it’s not about the money, it’s about principle”

Separating but no divorce?

Have you thought about a separation agreement?

It isn’t unusual for people to separate for many months or even years before beginning divorce/dissolution proceedings.

Some just need time to save up for the court fee which is currently £550.

Others prefer to adjust to living alone, sometimes hoping that a reconciliation is still possible.

The undoing of the legal contract of marriage/civil partnership doesn’t hold the same sense of urgency for everyone. So does it make a difference? Are there any financial or other implications and if so what do you need to consider? Continue reading “Separating but no divorce?”