Notice to show cause

Hi all,

I am new here.

Currently, I am going through the financial settlement process. I'm 32, employed making 80k, have current full custody of a 5-year-old (subject to child act matters), and live in my own home (50k equity 350k mortgage).

My ex is 35, currently does not work but had received 90k in gifts from her parents last year, she resides in the marital home (no mortgage) valued at 830k. We were married for 2 years but cohabited for 6 years.

I have been represented by direct access barristers and she has had a full legal team, ahead of the last FDA they made an offer, which I accepted of a 45k lump sum, Clean Break, and agreement to make no CMS claims against each other.

A Consent Order was drafted, signed, and submitted to the court. A judge questioned the fairness of the deal saying:

- I made a lot of money; why is this suitable for a clean break given respondent (my ex) has no income; and for the respondent to confirm the cms point could not be enforced by the court.

My ex has now tried to renege on the deal and has first requested a clean break, then offered 20k, then offered 35k. I offered a 40k as a sum total that could be acceptable just to get things over the line which she declined.

At the last directions hearing the judge has agreed I could make a without cause notice in an attempt to force her to go through with the deal, though I am concered that if I do this that it could fail and I would end up with a costs order, so I had a few questions:

- Would the fact I entered into further negotiations undermine my approach that the current case was binding (my barristers thought not and think I have a strong case)?
- Would a costs order always be made, or would a judge at some points not make a cost order at a notice to show cause hearing?
- Would there be cross examination at a notice to show cause hearing?
- Would there be multiple hearings, or just a singular hearing?
- Is it usual to have clean breaks in a consent order where there is children involved and a lump sum is paid? or is this something which judges might think is unfair and not agree to move forward with the order?

Sorry for the 100s of questions, I have a week to decide what to do and limited access to further funds for legal advice.

My alternative to accepting her current offer would be to head to an FDA in the expectation that I could probably end up with more than I had originally settled for (My barrister reckons maybe c100k) though I am slightly sceptical of this position.

Any thoughts and views on any of the above would be really welcome.

Kind regards
Underhill

Welcome to Wikivorce but sorry you find yourself here.
Can you just clarify how many hearings you have had? Was agreement reached at FDR (usually second hearing) with input from the judge? If yes, why was the consent order not signed off by the judge there and then?
If it was a direct submission, outside a hearing, has the judge simply asked for clarification of the rationale behind the agreement?.
Could your ex be reasonably housed for less than the equity in the FMH? Is an order for sale included?
Is there a reason why she does not work? Is she able to? Are there other children to consider?
Presumably your mortgage costs are pretty high so there's not that much left over for spousal maintenance even though your headline income appears good.
As things stand you don't have an agreement a judge will sign off so I am not sure if a notice to show cause will help - although I imagine the questions raised can be answered in open court if there's a hearing.
If you need directions for Final Hearing instead of a Notice to show cause, you would need to apply to the court for those. This could be dealt with on paper. I guess you could make an open offer to settle so if she refuses and a final hearing goes ahead you could make a costs claim if the judge agrees she should have settled. You'd have to give careful thought to how much to propose.

Hadenoughnow

Hi,

Thanks for the quick reply.

I accepted their wp offer the day before the FDA.

We submitted the signed consent order which the judge questioned about my salary; why the case was suitable for a clean break and whether the respondent knew the court could enforce no future claims on CMS.
My barristers readings where the judge wanted clarification, and the respondent is being opportunistic and thinks she could get away with less.
She claims not to be able to work because of mental health reasons and some muscular issues (she is a chef).
No order for sale was included, her parents had agreed to fund the lump sum.
She has no other children.

For the reasons you have raised and as we proceeded with further WP negotiations after she reneged, I am worried that the notice to show cause could fail on fairness and and I am left with her costs.

For a notice to show cause hearing, would costs always be ordered one way or another?

It could be the best outcome would be to progress to the FDA and get judges input on what a sensible order would look like.

Is it possible to get consent orders agreed as part of an FDA if both sides agree?

Kind regards,
Michael

Also, yes my ex could be reasonably rehomed comfortably at half the value of her current home.

Sorry, also one other thought. Is it possible for me to write to the court to try and address the points on fairness before lodging a notice to show cause?

FDA is the first hearing (it can be held as FDR if the parties agree)

FDR is the second hearing at which offers are discussed and agreed settlement can be reached on the day with the help of the judge. A consent order would be signed.

Final Hearing (FH) is where the judge makes the decision for you.

You can propose ADR options including private FDR but if she doesn't agree to be bound by the settlement, you could still end up at Final Hearing.

As the judge had queried the order I am not sure if a notice to show cause would be appropriate. You have continued to negotiate which is reasonable but she still hasn't agreed. It would be interesting to know whether this is contrary to the legal advice she has had. The offer was made by her wasn't it? Did you take legal advice on it?

It may be that another FDR would be appropriate/possible so the consent order can be discussed with the judge and signed off there and then.

Or it may be that directions for FH should be sought. A final hearing would require detailed evidence of needs and means.

At the end of the day, between you, you will likely spend as much as the amount in dispute trying to resolve things. That's why an open proposal should be made. I remain perplexed by such an unequal split of capital. On the face of it this matter bears closer examination by a judge who has read the papers; ideally a robust FDR judge who will guide to settlement or a judge at FH who is empowered to make the decision for you.

Hadenoughnow

Thanks hadenoughnow, I did not have full legal advice on the consent order, other than my DA barrister giving a cursory read of the agreement reached.

The other sides family bought her the home pre our marriage, so they argue that it is a non marital asset and are arguing uneven contributions.

As I have contributed to the running, maintenance and financing of that home and met all of my child’s financial needs I have challenged this. Though perhaps not robustly enough, so an FDR might be the best way to contend and work through an offer a judge would view as fair.