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sometimesitdoesn'twork

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Subject: DIY consent order Posted: Thursday, December 5, 2013 - 12:55:03

Maintenance is a very good example of what I\'m talking about. First of all it can be paid as a set amount or a percentage of income. Sounds simple until you start considering what is income and who verifies it, should the amount be reviewed, if so by whom and when, at what rate etc etc. If you look at the whole raft of child support legislation, rules and regulation governing these issues you begin to understand the scale of the problem. Also is the maintenance to be paid just for the children at CSA rates? If the Father agrees to pay more CM there is nothing to stop him going to the CSA a year after the date of the order, getting a reduction and the order ceasing to have effect. You wouldn\'t then be in the position to apply for spouse maintenance because your claims have been dismissed. On the other hand if he agrees more than CSA rates the bit he pays over and above can be documented as spouse maintenance so should he go to the CSA for an assessment on child maintenance he would still be liable for SM. Another possibility is for a maintenance order to worded in such a way that £XX is paid minus any CSA calculation. Also the wording about when child maintenance should stop is important. In my experience far too many people agree child maintenance should end when the child reaches a certain age or ends \"full time education\" which ever is the sooner. I have to admit for historical reasons even a lot of solicitors do this leaveing it open to interpretation. Then when the child reaches 18 and wishes to go to college or university there is disagreement whether \"full time education\" means the end of secondary or tertiary education. Of course it might be you trust each other implicitly or you have enough of your own money to survive should things go wrong but the point about a consent order is for both parties interests to be protected.

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sometimesitdoesn'twork

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Posted: Thursday, December 5, 2013 - 12:55:03

In theory it is possible to draft a consent order yourselves but in practice most people do not have the knowledge or experience to do this unless there are no assets. The lawyers organisation Resolution has published a book containing possible clauses, although I believe it isn\'t cheap and costs in the region of £100. The problem is choosing the ones most appropriate to your circumstances and understanding the relationship between the recital and orders. The other thing to bear in mind is any agreement reached with the advice of a solicitor is more difficult to challenge and if a solicitor gets it wrong they are protected by insurance and there is the possibility of compensation. I am not a solicitor and have no vested interest but I have seen far too many people trying to put things into orders which have no basis in law and are not enforcable. Doing it yourself is fine for divorce and in children cases where there isn\'t a lot of law involved, however, it is a false economy when it comes to the consent order.

Lisa.W41

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Posted: Thursday, December 5, 2013 - 12:54:16

There are no real assets to fight over. We were in rented accommodation, there are no pensions worth getting involved with. Our bank accounts are our own. The only asset is a small property in France that I own outright. We are both in agreement that we don\'t want anything from each other and have agreed about the insurance policies and the amount of maintenance. So really it is all quite simple. Lisa

sometimesitdoesn'twork

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Posted: Thursday, December 5, 2013 - 12:55:03

Maintenance is a very good example of what I\'m talking about. First of all it can be paid as a set amount or a percentage of income. Sounds simple until you start considering what is income and who verifies it, should the amount be reviewed, if so by whom and when, at what rate etc etc. If you look at the whole raft of child support legislation, rules and regulation governing these issues you begin to understand the scale of the problem. Also is the maintenance to be paid just for the children at CSA rates? If the Father agrees to pay more CM there is nothing to stop him going to the CSA a year after the date of the order, getting a reduction and the order ceasing to have effect. You wouldn\'t then be in the position to apply for spouse maintenance because your claims have been dismissed. On the other hand if he agrees more than CSA rates the bit he pays over and above can be documented as spouse maintenance so should he go to the CSA for an assessment on child maintenance he would still be liable for SM. Another possibility is for a maintenance order to worded in such a way that £XX is paid minus any CSA calculation. Also the wording about when child maintenance should stop is important. In my experience far too many people agree child maintenance should end when the child reaches a certain age or ends \"full time education\" which ever is the sooner. I have to admit for historical reasons even a lot of solicitors do this leaveing it open to interpretation. Then when the child reaches 18 and wishes to go to college or university there is disagreement whether \"full time education\" means the end of secondary or tertiary education. Of course it might be you trust each other implicitly or you have enough of your own money to survive should things go wrong but the point about a consent order is for both parties interests to be protected.

Lisa.W41

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Posted: Thursday, December 5, 2013 - 12:54:16

I can see your point, however my ex has been married before and there was never an issue with him paying child maintenance, it was set up and paid as per agreement. We would both like a type of clean break, we both want to move on with our lives and I certainly don\'t want to be dependent on him. Perhaps we need to clarify the finish of education part on the consent form, but I still don\'t know what one looks like yet!

sometimesitdoesn'twork

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Posted: Thursday, December 5, 2013 - 12:55:03

There isn\'t a form for the consent order itself. The beginning of the document sets out the context in which the orders are to be made. It usually starts off along the lines; \"Upon there being no appearance by husband or wife. Upon the H & W agreeing that the provisions of this Order are accepted in full and final satisfaction of all claims for income, capital and pension sharing orders of any other nature whatsoever which either my be entiteled to bring against the other or others estate in any jurisdiction...\" It continues with clauses specific to your case and are particular clauses relating to the Married Women\'s and Insolvency Acts (whatever years) Then the orders by consent are listed; \"By Consent it is ordered that. 1. H do transfer to W within 56 days all his estate and beneficial interest in \"the home\" subject to \"the charge\".... 4. H do pay or cause to be paid periodical payments to W for the benefit of ??? (d.o.b.) and ??? (d.o.b.) at £xx from the date of this Order until the youngest child shall attain the age of 18 years or ceases full time tertiary education whichever shall be the later, such payments shall made monthly in arrears... 6. Upon compliance, each party\'s personal claims against the other for, periodical payments, secured pre payments, lump sums for themselves, prop adjustment orders, pension attachment or pension sharing orders do stand dismissed and neither party shall be en­title­d to make any further application in relation to the marriage under MCA 1973 section 23(1)(a) or (b), Section 24 or Sections 24B,25B,25C, relating to pensions\" Again the orders are case specific. There are \"pursant of inheritance \" \"liberty to apply as to implementation\" and \"no cost\" clauses usually at the end. Once you have a draft it is a question of submitting it along with D81, the court fee (see leaflet EX50 available to download HMCourts website) and Form A for dismissal purposes. Apparently not all courts insist on Form A so you can ask the local officials. It isn\'t unusual for the judge to ask self reppers to attend a short hearing to ensure they understand all the implications.

Lisa.W41

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Posted: Thursday, December 5, 2013 - 12:54:16

Thanks for that, it is very useful. Can you point me in the direction of where to get the correct clauses/terminology to suit my situation? Is there anywhere on this website for example. I want to submit this to the courts next week. Thanks, Lisa

sometimesitdoesn'twork

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Posted: Thursday, December 5, 2013 - 12:55:03

Legal drafting is an art. Unless someone is a lawyer specialising in family law they are unlikely to have the knowledge and experience required to draft the order. That\'s why most people, even those who do the rest themselves, will engage a solicitor. You could check out legal drafting text books but it needs to be remembered each case is unique. Alternatively you could try an online service who will do a consent order for as little as a couple of hundred pounds. They rely heavily on turnover and often paralegals carry out the work to keep costs down so you are unlikely to get the same service but it\'s worth considering.
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