Can a consent order be changed?

court consent order
There are times when you may find that you need to change the terms of a consent order by agreement.

For example, you have a consent order for the sale of the family home and now in fact you want to transfer it from joint names to one name instead.

Do you need to change the consent order itself or can you just go ahead and transfer the property?

The answer lies in the detail of the order. Continue reading “Can a consent order be changed?”

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.

 

 

 

Does A Consent Order Have To Be Drafted By A Solicitor?

Does a consent order have to be drafted by a solicitor?

I think it’s helpful to look at how the court system works to understand whose responsibility it is to prepare court orders generally and then look at the question does a consent order have to be drafted by a solicitor.

Divorce court orders generally

In family cases, specifically divorce cases, there are some totally standardised court orders. These are, for example, the decree nisi and the decree absolute.

The court service automatically produces these documents. It is straightforward for the court service to do this because apart from changing the names of the parties, some dates and the case number, every decree is identical.

Financial Remedy Orders

Financial remedy orders are not so straightforward. Each one is bespoke. Each one is unique to the parties involved in that case. Some are very simple, for example orders which only contain clean break provisions. Others are not simple and require careful attention to detail.

There are two types of financial order. Financial orders which are made by a judge  after a contested hearing and financial orders made by consent. Continue reading “Does A Consent Order Have To Be Drafted By A Solicitor?”

Consent orders and standard precedents at the touch of a button?

More and more people are having a stab at their own divorce petitions. The court forms make this relatively easy in an uncontested divorce and as long as nothing goes awry it is achievable. You don’t have to be an expert on the British Nationality Act to fill in an application for a passport and you don’t have to be an expert on the Matrimonial Causes Act to fill in an application for divorce. With the exception of unreasonable behaviour petitions which do require some careful drafting, it is a matter of choice whether you have someone do the forms for you or not. 

I know I have gone on before about the dangers of using unregulated legal services….so just to recap:

Unregulated providers like divorce online, quickie divorce, managed divorce etc

  • Do not have to have any legal training whatsoever
  • Do not have to have insurance
  • Do not have to have a complaints policy
  • Do not have to provide customers with clear terms of service
  • Are often not cheaper
  • Are not allowed to give discreet legal advice
  • Are not allowed to represent you in court or in any court proceedings
  • Are not authorised by the Legal Services Act 2007.

The Legal Services Board is currently undertaking research into how useful or otherwise these services are and whether changes to the current law need to be made to protect the public.

But applying for your own divorce is not the same as drawing up an agreement in relation to the division of your assets. Why not? Because agreements are far more complicated on the whole and your circumstances are unique to you.

By the end of 2014 the President of the Family Division Sir James Munby would like there to be in place a comprehensive set of precedents to be used in most family law orders, ranging from occupation orders to financial remedy orders.

Use of these standard orders was originally going to be “mandatory” and introduced by April when the single Family Court is supposed to come into existence.  However, it is now thought that they will be in use by the end of the year, not April, and may only be issued as “guidance” rather than being made compulsory.

This change of tack is probably partly to do with the consultation feedback from solicitors and other practitioners. Standardisation at the touch of button, saving cost and time. Nice ideas but rather more difficult to produce in practice that in theory.

Sir James Munby said in his “View from the President’s Chambers (4) last year that

“Inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised.”

That was last November at which time he confidently said that work had begun and was well advanced. But here we are in mid February and we are now further away from a final set of precedents which may no longer become “mandatory”.

There is no doubt that some consent order clauses are absolutely standard, for example the clean break clauses. I would be very surprised if there was much difference around the country in the detail of these clauses. Indeed so standard are they that it is very easy and quick to produce a simple clean break order and this is of course reflected in the price I for example charge for this type of document. The majority of the work which goes into the production of these orders is checking that they don’t appear totally unsuitable for the person paying for them.

However, there is an increasing tendency to use language which gives the impression that all consent order drafting is “easy”, that it can all be done by tickbox work. And therefore that it is over-priced.

That is not helpful for anyone, not the lawyers clearly – who have to work harder to justify their fees – but also not the client/customer/court user who are either using unregulated cheap online services or trying to draft their own.

This is not to say that there can’t be any standard clauses. Of course there can and it will rightly cut the time and cost of drawing up and approving agreements/orders if there is some degree of standardisation.

But we are not all standard and we should embrace this fact not see it as a cause of frustration.

For most people on average incomes in Britain today there’s rarely a time where it is more important to save money than when you are going through a divorce.

That’s why it is music to the ears to hear unregulated providers of legal services tell you that you don’t need to use a solicitor, that we all overcharge, that we are “money for old rope”.

When I receive handwritten agreements from my clients who want me to draw up a consent order to make the agreement legally binding, I will usually make suggestions which the people did not think of.

My experience, sadly, is twenty years of seeing first hand how people fall out and what commonly causes those fall outs.

I use that experience to advise people on how to convert their agreements into consent orders that will work for them both now and in the future, avoiding conflict further down the line.

I take the basic idea and put together clauses that I hope will survive most tests. I tell my clients where I think there are weaknesses in the agreement which either of them may find difficult as the months or years pass. Where possible I suggest alternatives – taking into account the fact that they will not want necessariy to upset their basic agreement.

This is the work that I do. It is not aggressive. It is not money for old rope. It is all about putting my client’s first and that means taking into account relationships and feelings as well as pounds and pence. It is anything but standard.

With the increase in mediation as opposed to court proceedings it is inevitable that agreements are going to be more flexible, more unusual than orders made at court. This is one of the advantages being promoted by the judiciary and the government.

The difficulty is that these agreements have to be converted (under current law) into consent orders to be made legally binding. For any agreement to have any substance or enforceability the terms have to be really clear. For them to be court orders they have to come within the types of order a court can actually make. People who are not familiar with the Matrimonial Causes Act will not understand this, will not know what can and cannot be made into an order.

So what is my point?

Well,

Standardisation is harder than it looks to the general public.

Even the President of the Family Division who so confidently stated that he could  “under the determined leadership of Mostyn J…..provide us with a comprehensive set of orders the use of which will in due course become mandatory in the Family Court and the Family Division.” is discovering that this is easier said than done.

Standardisation does not work easily in conjunction with the promotion of flexibility in mediation. This is a quote from the National Family Mediation website –

“When you go to mediation you will be making your own arrangements that suit you in your unique circumstance. You will decide how to divide your property and finances. You will decide what is best for your children and how you can work as separated parents.”

What is likely to be standard about that?

So we need to accept that tailoring court orders to the new framework of mediation is going to be tricky.

Let’s not dumb down the important complicated work done by the majority of family law solicitors.

By all means criticise those who milk their clients for all their worth to line their own pockets. Please do also continue to promote alternatives to court.

Let’s all embrace finding solutions together and minimising conflict and the associated stress and expense.

Let’s standardise where we can but don’t over egg the pudding. It can’t be comprehensive standardisation unless we’re all standardised too.

 

 

 

 

 

Child Maintenance and Consent Orders – the 12 month rule

I was asked a couple of weeks ago to point out where the “12 month rule” can be found in the various legislation relating to child maintenance on divorce or separation for those parents who are not married.

First of all what is the 12 month rule?

The rule is that where the court has made an order for child maintenance (which can only be made by courts now in limited circumstances) either party can opt out after 12 months.

The rule can now be found in the Child Support Act 1991. Section 4 of that Act was amended by the Child Support and Pensions Act 2000 as follows:

Applications under section 4 of the Child Support Act 1991.

(1)In section 4 of the 1991 Act (child support maintenance), subsection (10) shall be amended as follows.
(2)In paragraph (a), after “maintenance order” there shall be inserted “made before a prescribed date”.
(3)After paragraph (a), there shall be inserted—
“(aa)a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or”.

What is the prescribed date?

The “prescribed date” can be found in the “The Child Support (Applications: Prescribed Date) Regulations 2003″ and it is 3rd March 2003.

What does all that mean?

In a nutshell if your consent order contained an agreed order for child maintenance and was made before 3rd March 2003 you cannot opt out after 12 months and if your order was made after 3rd March 2003 you can.

So if you can opt out why bother with it at all?

There may be other reasons why you want an agreed maintenance order. It is important to take advice before deciding.

Points to consider may be  for example :-

  1. where one of you lives abroad or may be going to live abroad and the CSA will not have jurisdiction there; 
  2. some mortgage lenders like to see maintenance in a binding form such as a CSA assessment or a court order and you don’t want to go through the CSA process;
  3. you just want to see your agreement in writing rather than go through the CSA;
  4. you have agreed a higher amount than the CSA would prescribe and want to be sure to receive that for at least a year;
  5. you may have agreed school fees are to be paid and this is separate from normal child support and is something you need to discuss with your solicitor.

What happens when you opt out?

The CSA jurisdiction takes over from the court order and the court ordered maintenance lapses. You will pay the CSA amount from that point on whether it is higher or lower than the court ordered maintenance.

Don’t forget though that you actually have to apply to the CSA otherwise the court order remains in force.

There are ways to protect maintenance from reducing in some circumstances by using the spousal maintenance provisions if appropriate. These can be called “Segal” orders which encompass both spousal and child maintenance in one amount. Or you can just have a straightforward spousal maintenance order which can be set to automatically go up if the child maintenance goes down.

Talking to a solicitor about all these options doesn’t have to be an aggressive step. It is a fact that the various rules and laws are spread over different Acts of Parliament and Statutory Instruments and no amount of searching on wikivorce is going to be a good substitute for talking to an experienced divorce solicitor about this.

Save yourself hours of trawling through pages of misinformed forum commentary and blogs and just speak to a solicitor who can usually give you the answer to your question in a few minutes.

Armed with the right information you can go to mediation or just sit and talk to your husband or wife about the best way to deal with your situation.

And please don’t be offended if your solicitor makes a reasonable charge for a consultation. It is his/her job at the end of the day. No one wants to see exorbitant overcharging. No solicitor should make more work for themselves than is necessary. But it’s not unreasonable to charge a fair price for helpful advice.

 

Author: Nicola Williams Solicitor

Why is legal advice so expensive?

I am your solicitor - qualified to answer

I’ve heard many a lawyer say “Even I couldn’t afford to pay me”.

Well hang on a minute, if that’s true then we’re doing something wrong here. I have a service to sell and it’s no use at all if no one can afford to buy it – no matter how good I am at what I do.

We have lowered our charges to coincide with the reforms to the legal aid system today.

For the last 18 months we’ve been monitoring and preparing for the changes to access to legal services in family law. We realised fairly early on that wholesale changes would have to be made for the ordinary man or woman in the street to continue to be able to use a solicitor to access legal advice – with or without the changes to legal aid.

We’ve all felt the pinch over the last year or two. The cost of heating and lighting our homes has risen dramatically. Food prices are higher. The cost of borrowing hasn’t just risen, it has become almost impossible to arrange a mortgage without a sizeable deposit, which means making savings everywhere you can.

And the knock on effect is that people just don’t have spare money to spend on legal services no matter how much they may need or want them.

So I want to look at why legal advice costs so much and what we have done to address that and bring our charges down.

Legal advice is a personal service usually. You tend to see a solicitor one to one, explain your problem and pay for the time it takes to listen to you and give you a range of possible solutions. But don’t be under the illusion that the lawyer pockets the whole of the hourly fee.

An hour with a solicitor includes paying for premises, professional indemnity insurance, ongoing mandatory annual training, telephone support, administrative support, advertising, mandatory membership fees for the Law Society and the Solicitors Regulation Authority and any other subscription such as Resolution the solicitors family law association.

All of the above is included in the hourly rate you are charged.

When you go into a shop to buy a pint of milk, say, the general overheads of that shop are shared between you and everyone else who is in there buying something. If you were only allowed in one at a time (and maybe took a little while to decide what you wanted) you might start to find that your pint of milk became unaffordable as well.

So how have we addressed the first problem – the cost of general overheads? Well we have started to work in an open plan space which is far cheaper for us and means we can pass on this saving to our hourly rates.

Instead of working from expensive offices we have moved off site to cheaper premises, and now when we see a client we book a meeting room for that hour or two which is cheaper for us than maintaining a full time office space in the same plush building.

We have begun making far better use of email so that we cut down on our stationery bills. We scan rather than photocopy where we can. We scan archive files rather than pay for expensive document storage facilities (we have to keep your file for at least 6 years after your case ends).

We don’t employ secretaries any more.  If we have a large amount of typing we have this done by a legal transcription service. Otherwise we type our own emails and forms. This is our biggest saving but not without its own issues. It can result in us being slower to respond occasionally. I personally type pretty quickly now but not as fast as I can dictate.

Instead of giving the same advice repeatedly in letters we have general advice on our website and we refer people back to this to refresh their memories of what we have told them. This saves us time and is just one example of how the internet and technology can help bring the cost of legal advice down – leaving us free to deal with the issues that are more personal just to you and need our one to one attention.

We make use of cheaper online training programmes such as that offered by family law week as well as the minimum face to face training we have to have every year.

We keep our insurance as low as we can by not making mistakes and by publishing our fees and our terms of engagement and thus not having complaints made against us!

We’re doing what we can and we have plans to do a lot more with online tutorials and workshops over the coming months.

And from today the fees we charge reflect the work done together by a legal executive and a solicitor on a case to further help spread the cost.

Our new rates are being piloted for 6 months. On 1st October 2013 we will report back on whether the new rates have proved a success and will be continued for new business after that date.

All clients who have asked us to do work for them between today and 1st October 2013 inclusive will be charged at our lower rates to the conclusion of their case.

For more information on our pilot fee scheme see here.

 

 

Tips on how to get the most out of using a pay as you go legal advice serivce.

Look after the pennies and the pounds stack up
Look after the pennies and the pounds stack up

We officially introduced our pay as you go legal advice services last year.

Who is it aimed at? Anyone who doesn’t have a spare £10,000 to £20,000 to get divorced – so nearly everyone really.

How does it work?

Unlike a bespoke legal service where we act for a client from start to finish, writing their letters/emails, preparing their documents automatically for them at the correct time, dealing with the court and the other party as and when required, with pay as you go we only do what we are specifically asked to do by the client.

The client is on the court record as acting in person. We help behind the scenes. The cost saving is dramatic and the client is generally happier because not only does this service cost less but he/she remains in control throughout.

In a family law case this is particularly important. Family law is personal. It has far reaching effects long after the court proceedings have ended. It involves people who have no say and no control over what happens in court – the children.

To allow strangers to exert control over how often a child sees a parent or where he/she lives is prone to the risk that what is best for that child will not be achieved. This is especially when the strangers (lawyers) make more money generally from cases where there is continual dispute than from those where agreement is swiftly reached.

It is frequently the parents themselves who are to blame for these protracted and hostile disputes, but the lawyers will never come out of it smelling of roses.

Pay as you go advice reduces the risk of lawyers getting too involved, taking too much responsibility for the future of your family and your children and imposing their own views on how you should manage your arrangements. You need advice not another mother-in-law (or father-in-law).

Lawyers have also come under fire recently for the amount that they charge and for failing to give cost estimates or update them appropriately during a case.

It is never easy to give an accurate cost estimate at the outset of a case. Based on limited details taken from one party (and with no real idea of how difficult or otherwise the other party is going to be) how can we accurately predict how much work we will need to do?

And so what you end up with is a general best and worst case scenario. But since a worst case scenario is likely to scare your client off, these are usually not the really worst case scenario.

Really difficult cases are probably less than 10% of an average case load whilst mildly fed up clients (let’s not forget they are getting divorced, moving out of their homes, surviving for the next few years at least on a fraction of the income they had whilst together) account for probably half to two thirds. The mildly fed up group can generally see the difference between being fed up with their circumstances and with the service they receive. Usually their cost estimates are about right as we calculate estimates based upon the average for the majority – like any other business.

It’s no surprise that the minority of people with really difficult cases end up with higher fees than they anticipate and whilst we have not ever had a formal complaint brought against us about fees, we can understand the figures relating to complaints against divorce lawyers set out in the recent legal ombudsman’s report suggesting that around a quarter were indeed just about fees.

Pay as you go is designed to avoid these issues.

The client is self-representing. There is no need for an overall cost estimate as the client is in control of how far the case proceeds and how often along the way he/she will seek advice or professional document drafting.

The client is charged only for the face to face meeting, or email or letter to them, one item at a time. Work does not build up. Unpaid fees do not mount up. We do not become embroiled in lengthy, often pointless, correspondence with other solicitors.

It is a new way of working and we are still finding our feet. We are also finding that clients like it.

Yes they have to do more of the work themselves but pointed in the right direction they can do this easily as well as a new paralegal. And they are focused and committed to the case and don’t forget where they are up to.

To help our pay as you go clients we have a page on the website dedicated to helping them understand how to make the most of the service.

You can link to it here.

In summary our pay as you go legal advice service is proving popular with clients because it costs less and keeps them in control. For us it is a success because we have better cash flow and we like happier clients.

If you would like to make an appointment or speak to us about the service please call us on 0161 486 5080 or fill in our contact us form which you can find here.