Loss of maintenance

It appears the only agreement was the one made on separation and it is H who has changed his mind and then resiled from the agreement drafted at mediation. Following Perry's logic if anyone finds their position weakened in court it will be H.

No money should change hands until the agreement is signed and sealed.

Sorry Fiona, your logic is flawed in this case. If he has no income and Sky is going to resile a capital element on the basis of his loss of income it is more likely that he would be awarded more capital...not less.

Perry, you said OP might find herself in a position weakened by not honouring the agreement, but there is no legally binding agreement. If anyone's position is weakened because of the dishonouring of an agreement it would be the husband's as he is the one who has changed his mind about the original agreement and won't sign the second.


The particular facts are relevant and without the details no one can say what the probability of being awarded more or less at a FH. As far as costs are concerned if the husband is unreasonably pursuing or contesting a particular issue he might just as well find he is the one ordered to pay.

I know it seems like half a dozen of one and six of the other, but the OP is talking about changing the deal whereas her ex-husband has simply not signed it as yet, he might be asking for more, but as the draft consent is there it remains an open offer.

The first deal does not count because it was superceded.

The second deal remains live and the question is should she resile it or not?

We know we are talking about an actual breaking of the deal because the question is very specific. Should I pay him less than agreed or not (based on a future event that has not happened)?

My advice therefore is correct, she needs to think carefully about taking back a firm/open offer that is on the table to which she is pressing for a signature. It is not an unforeseeable event that his income could go down or up or that either party could approach the CSA in a year for a revaluation.

To attempt to adjust the current capital element because there might be a change in circumstances in the future would be seen (in my view) as overzealous to which the other party would have no ability to rebalance from if his income was to rise and the OP chose to have him reassessed.

My advice was and is:

Yes you can walk away from the deal if it is not signed.

No you cannot arbitrarily pay him less than you agreed as a unilateral amendment to the deal because of a future change in circumstances even if foreseen. That is not the deal. If you do that then you have resiled the deal which is in the form of a draft Consent Order - negotiated.

He could in effect, take it to court and ask to have it enforced with the costs borne by the OP. Likewise the OP could take it to court and ask to have it enforced, with costs awarded against ex-husband.

I completely agree, under no circumstances should money change hands until the agreement is signed and sealed.

The courts don't look favourably on consent orders that have been negotiated being resiled (even if not signed) unless there is a clear case of unfairness in the original terms, there was coercion or an unforseen event has occurred. A redundancy in the current environment would not meet that hurdle (and there is no evidence that he would not keep paying).

The amount in question would be eaten up in legal fees before solicitors would have reached a view. It simply is not worth it.

Sign the deal and be done with it and try to negotiate a short term resolution if he is out of work. Most people would accept people cannot pay what they don't have and give a payment holiday but would hope that the otehr party recognises they should try to catch up if as and when possible.

In this case it would keep the focus on child maintenance which is more likely to be neutral ground rather than marital assets which is guaranteed to result in animosity and court costs if they can't settle it.

SkyAnn wrote:

Sorted finances when separated, i bought ex out, he came back for more, went to mediation, re-agreed things, he now won't sign papers as has decided its still not fair!

What papers are we actually talking about here? The "Without Prejudice Memorandum of Understanding" as produced by the mediator or a legally drawn up "consent order".

In fact, was there an original consent order in place?

If nothing was signed in the first place and they haven't been through the courts I can see no reason why Sky cannot start using the £3,500 to pay for her or at least the childrens living expenses if she is not getting anything from her X.

Otherwise, until Sky gives us more information, I think it is really dificult to comment any further.

LIB, the original agreement was not a deed of separation or a consent order. it is not clear that it was even documented on paper and certainly would not hold up in court.

The ex-husband instigated financial settlement via his lawyer when Sky instigated divorce proceedings.

At least that is what her threads indicate.

The ex-husband was unhappy with the settlement, but my view at the time was that a payment of £5k would probably satisfy. Unless I've missed something there has been a tradeoff where Sky has agreed an additional sum of £3,500 but the ex-husband has agreed to £260 per month for CS rather than the original £200.

This has all been going on for at least 18 months now and is starting to grow its own set of legs. The parties need to put it to bed before they waste any more money.

The opportunity is now there to do that possibly as if the ex-husband is losing his job he will want the cash sooner rather than later.

The agreement strikes me as fair to both parties, they just need to get on with it.

The amount Sky is now in doubt about is possibly £1,500. As much as I can understand her reluctance, she should bite the bullet and press on to have it signed and sealed. It just is not worth the costs.

If they have to pursue this via the courts it will cost a lot more and there is no certainty of the outcome. So even though we want to side with Sky, to advise her to fight it out over this sum would be a very poor recommendation. it is often at times like this that good deals are done because both parties feel they are getting less than they wanted, and will get over that feeling very quickly.

PP,

This thread mentions nothing about what you say above but obviously you have knowledge of this case so I shall butt out.

However, I wasn't suggesting that Sky
"fights" over the sum concerned because I had no idea what her circumstances were apart from nothing has been signed.

For all I know, she may be a wealthy woman but if not, it's not her fault that her X has been made redundant. So if she does need the said money in lieu of child support that he can't pay then why not use it.

After all, I take it that they're his kids as well?