Hi, I'm a LIP and would be grateful if someone could advise on process for applying to vary
Consent Order, please.
Background: re: financial consent order, it was agreed to get ex- released from joint mortgage on
FMH and make ‘% of the pot’ balancing payment to them in consideration of the transfer of equity. This had to happen by a specified date, otherwise FMH to be put up for sale. However, the judge was clear during the FDR that I could apply to vary that specified date should it be needed, and this was written into the consent order.
I'm not now going to make that specified date for 2 reasons:
1. I am short (approx. £6K) of the balancing payment amount although I should be able to rectify this within 6 months (as an aside, this is partially caused by my ex not complying with another term of the consent order and I do have the right to make an application as to costs for this amount - I wasn’t going to but might be worth my while now).
2. My mortgage company re: change of borrower, will not allow any arrears in the last 12 months on my credit history and there were mortgage arrears on a jointly owned second property 10 months ago. This 2nd property was put up for sale as per the consent order and it was agreed in the order that mortgage arrears would be settled from sale price, as I was paying mortgage on FMH and ex said they couldn't afford to pay. Unfortunately, it took a very long time to sell the second property which wasn't foreseen when the timeframe for me to release my ex from the FMH mortgage was agreed.
Another factor to consider is that there was a significant change of circumstances within 1 month of the FDR in that my child has not resided with /has had no direct contact with my ex (due to ex's conduct) and I have had to assume full financial responsibility for my child since then, which was not factored into financial proceedings and division of assets. So basically, if I am forced to put FMH up for sale, it would be putting my child out of their home where they reside 100% of the time to make a payment to my ex who is not now providing a home for our child at all. I have not sought to previously vary the order on this basis, preferring just to get this all finished asap and without further litigation, but now I’m going back to Court, should/would this be taken into account?
So, my questions are:
1. Do I need to formally apply to the court if ex agrees to time extension (highly unlikely they’ll agree but am thinking I should maybe write to their solicitor first to propose an extension?)
2. What is the process/forms for applying to vary the order and how much does this cost and what is the timetable?
3. What timeframe should I apply to vary the order for? Should I request 6 months as this is a reasonable time to get this over the line, but my worry is if I don’t, then can I go back and apply to vary again or should I ask for a longer period at the outset? My child has a number of years yet to reach majority. Or is there another option I haven’t thought of?
4. Will this application be likely to succeed given that judge gave permission to apply to vary the timeframe and the significant change of my child residing with me 100% of the time and me now having 100% financial burden for them.
5. What is the process/timeline/forms for applying for costs as to breach of consent order?
Any advice would be gratefully received. Thanks in advance.
