Set aside a consent order

Hi,

Im new to this forum, but i''m hoping that someone can confirm my thinking.....


My Ex and i started our divorce in January/ february 2012 and she was extremely keen to move out and pursue another relationship.

We have 2 children and 2 houses, one in my name and one in joint names. Upon separation it was agreed that my Ex would move out of the marital home and move into our other house as we had only just moved into the marital home a few months before (from the other house) so it would be a good transition for the children


At the date of separation, we valued all of the assets (both houses) and all of the debt and it worked out that we actually owed way more than we had in assets... circa 25k less ...Not great.

i have the kids at least 50% of the time if not more so it was agreed that i would take on all the joint debts (over a 20 year period) in lieu of any future claims against both properties, and i would provide the house (non matrimonial) for her and the children rent and cost free until the youngest child reaches 18. plus of course pay half of any child related expenses


As we were both really clear about the settlement and we were amicable, we decided to do an online service which was actually really good. Additionally, we agreed to a Consent Order (Clean Break) for the finances.

it was mutually agreed and my ex moved into the other house and i started paying both mortgages, all the debts and having the children half of the week.


Due to some delays and backwards and forwards surrounding the detail, we finally submitted the consent order and divorce petition in late 2013 which was granted in march 2014 with no issue


Now my ex is taking me to court to get the order "set aside" because she says that the the house value increased between February 2012 and October 2013 and that this was a "material non disclosure"!!!!

I am of course fighting this as assets are valued as of the date of separation (especially in a short 5 year marriage) and my ex was "living the agreement and benefiting from being debt free and living cost free in a 4 bedroom house...

My position is that if a date is mutually agreed (date of separation) and we are living the agreement, this can''t be a "material non disclosure". An order can only be set aside based on very limited circumstances. "material non disclosure is one of them" but it has to be proved that there was a fundamental non disclosure of something that would have made the initial judge rejet the original consent order

Also, my ex knew that property prices were rising as she is letting agent but when we discussed it i pointed out the amount of interest i would have to pay back on nearly 100k over 20 years....!


Any thoughts?


Signed,

Resisting a shafting from Hampshire

Your former wife may have a case but there is no substitute for professional advice from a solicitor who has sight of the documents.

A consent order is difficult to challenge if there was full disclosure, both parties took independent legal advice and the agreement was fair. The information in the simplified disclosure submitted to court along with the consent order for approval is supposed to be updated and correct around the time the form was signed rather than the date of separation.

Hi,

Thank you for coming back to me so quickly.

The advice from my solicitor is that my ex wife''s case is without merit as it is common practice to value assets and debt at the time of separation. I think this is fair as otherwise, you would have to value the assets, complete the disclosure form then continuously alter the order and disclosure form Every few months to accommodate for rising and falling debt level and property prices. furthermore, there has to be a line in the sand and given that we were both living a mutually agreed agreement, whereas my ex wife was living in the house with me funding the property and taking on all of the debts, my feeling is that it was an extremely fair agreement

Disclosure of asset value at the point of consent order must be current, not what they were worth.

Valuing at the point of separation is of little use, some separate and don''t divorce for years so you would be providing the judge with to some extent false information.

Material none disclosure would be my first thought, but, and it''s a big but if she was privy to the valuation offered in the statement of information for consent why did she sign it as being true and honest?.

If I am still correct property valuations last for 6 months during a court dispute. However this counts equally for your wife as it does for you and on that basis you came to a consent order.

If your wife wants to challenge the consent order then she introduces you to litigation and Civil Procedure Rules rather than mediation and Family Procedure Rules.

It''s not easy to set aside any order, consent orders are especially hard to challenge and I would think that your wife''s occupation will not help her cause if she wants to try to prove she was either bullied or did not have enough information at the time of consent.

I think if I were in your position I would be asking your solicitor what are the legal cost implications of this. What will be the cost of defending a consent order? What can be expected in court and who will become liable not just for your legal costs but also your wife''s if she makes an application to have the order set aside and another order made.

Valuations need to be accurate as can be reasonably expected, looking at the timeline here they were almost two years old in what was a fast changing property market, a little suprised the solicitors allowed this to happen really.

What the lady suggests, material none disclosure is all well and fine, but this usually covers hidden assets, these assets were disclosed, but not correctly valued.


I can see a judge maybe thinking along the lines of a Xydias agreement, if so the lady is snookered and the order will stand.

Thank you all for your comments

Yes, it was mutually agreed that throughout the process we would go with the initial agreed valuations as my ex agreed that as i was paying all of the debt, both mortgages and she was remaining in the house rent free, it was only fair. In fact, my ex did comment that "i will be laughing in the future because i will have 2 houses that are going up in value" to which i replied that i would be paying £700 per month for the debt for the next 20 years which she agreed to again and it was once agin concluded that it was fair

there is no doubt that me ex was aware of the increasing property value of the, not least because she has spent the past 15 years in lettings and property management


i will let you know the outcome

Mark