Varying consent order

alreid1612 wrote:

Sorry, I meant to say the petitioner is 53. She and the ex decided to have a child when she was 43. So when she finishes education, the petitioner will be in her 60s with no pension, limited employment prospects etc. Presumably this was one of the reasons for the original joint lives or until remarriage award.

Why no pension and limited employement prospects?

Could she not return to whatever she was doing at age 43 before having her daughter? Was there no pension paid into by this age? Children in education don't prevent you from working until the end of their education.

What are her plans to maximise her income as the holiday letting business is bringing in such a minimal amount?

She has kept up NI payments so she will get a state pension. There was never enough to start her own pension contributions. Her first husband walked out and left her with a 3 and a 1 year old (now 22 and 24) so she has done the reduced shelves in the co-op shop. In her 2nd marriage she brought up the respondents 3 children plus her two from her first marriage. Previously she had worked as an estate agent, an interior designer, a high end jewelry seller and an events organiser at a stately home. Tiny pensions from these. The holiday letting is pretty near maximised, bookings aren't going to go up and there may be some tweaks around costs but it is marginal. Her plan was to use the house until child had left school and then sell it, downsize, invest the residue from the sale and work at something else. So she has worked through the 10 year olds life, its just it doesn't bring very much in and she (mistakenly it now turns out) thought the Consent Order meant what it said.

A colleague of mine acted for an impecunious client who relied upon maintenance from an ex husband. She managed to put her life back together and her new partner moved in thus triggering the co-habitation clause.

However, the clause was successfully defended as the new partner was a low earner and it was found that the liability that rested with the ex husband did not pass to the new partner. If the cohabitation clause was enacted and the relationship broke down, the wife would be destitute. That could not be the intention of a joint lives maintenance order i.e. to prevent an ex spouse from entering into a new relationship and move on with their life for fear of financial ruin.

In the current case there is no cohabitation clause.

Charles

That's really helpful Charles. Thank you. You don't have or couldn't get the case law by any chance could you. I am of the opinion that the joint lives, until remarriage (and no cohabitation clause) was both specific and deliberate. But then I would wouldn't I! But if we had known the consent order was not as it was written and could lead to the loss of the home, we would not have gone down the cohabitation route.

There wouldn't be case law on that matter as it was in the County Court I'm afraid. Your starting point is that there is no co-habitation clause therefore no reason for the order to end.

Even if the order was to end earlier, there would have to be a capitalisation of maintenance i.e. a payment in lieu of the future payments that would not be made. Typically this is a percentage of the full amount to take into account various factors.

Charles

Many thanks. I think we can be fairly bullish on that basis. No need to capitulate at the first hurdle! Having just done both our tax returns we have a good handle on finances, affordability, need etc

Ok, we replied and rejected their cessation desire and made a without prejudice offer. He has now come back to say they are going to start court proceedings because he can and he knows we cant afford it. How long is this likely to take to come to court? He wants to run mediation (at our suggestion) in parallel . As far as I know no papers have been served yet just some very unpleasant and untrue stuff from his solicitors. He doesn't want to go to mediation so is offering London as a venue due to his work (he is on a three day week!). My partner will have to travel from Tavistock while continuing to look after a 10 year old. We are trying Bristol as a halfway point but he will refuse that because he doesn't want to do it. I think he will be retired (1 April) well before it comes to court so he will have all the time he wants to go to mediation.