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History: Home UK Divorce Forum
Topic:
consent order arrears (7 Posts)
Started By:
Date:
14 October, 2011 02:24PM
consent order arrears
Big_G - 14 October, 2011 02:24PM
Advice required please,

I divorced in 2004, we had a consent order drawn up which stipulated that I pay £250 for each child ( £500/ month). At the time i was able to do this as I had a well paid job. Unfortunately my circumstances changed ( lost my job)and I had to reduce the payments to £125/child ( £250/month).

This continued until may 2011 when I was made redundant and had to claim job seekers allowance. I was unable to pay anything at all for 6 months. I am now back in employment and have reinstated the £250/month.

i have never applied to vary the consent order as the changes have always been agreed verbally between myself and my ex wife.


My ex wife has now fallen on hard times herself and last week I received a letter from her solicitor demanding £20,500 in maintenance arrears from the date that i reduced to 250/month back in 2004. They have said that if i dont pay they will seek to place a charge on my property.

A few weeks ago my wife elected to involve the CSA who have now calculated a figure that I am happy to pay, however her solicitor is looking to recoup the £20k arrears

I have always enjoyed a good relationship with my ex hence why I never felt the need to officially vary the original order. she was fully aware of my financial situation and knows that I am not shirking my responsibilities to my children.

I am now forced to seek advice from my soilcitor that will enevitably result in further costs.

please can anyone advise if she can claim back these arrears when I have genuinely been unable to pay it. Furthermore I read somewhere that once a conset order is 12 months old the court has no juristiction over the matter and it is referred to the CSA to make a decision.
Re: consent order arrears
davidterry - 14 October, 2011 02:42PM
There is a statutory bar on recovering arrears of child or spousal maintenance which are more than 12 months old. Therefore there is absolutely no question of your wife being able to recover arrears dating back to 2004. Her solicitor can be told that if they do make an application like this you will oppose it and you will seek costs.

They may be able to seek arrears for the last 12 months. Whether they can do so very much depends upon what evidence you have that your ex wife agreed to the reduction. And if they were to make any application to recover these arrears you could make your own cross application to remit these arrears on the basis that at the time you were unemployed or whatever.

From the moment your ex wife made the CSA claim the CSA has jurisdiction and so the position should not arise in the future. In fact once a year had passed from the making of the original order it would have been better if you had asked the CSA to calculate the child maintenance. If you had done that then adjustments for periods when you were unemployed or receiving a lower income could have been effected relatively painlessly.
Re: consent order arrears
Big_G - 15 October, 2011 03:50PM
thanks I will mention this to my solicitor on Tuesday and see what they suggest.

many thanks!
Re: consent order arrears
Big_G - 08 November, 2011 11:15AM
Thanks David,

My solicitor sent a letter refuting their claims and quoting statute of Section 32 MCA 1973 bars the collection of arrears of maintenance over 12 months unless leave of the Court is obtained. We take the view that a Court would not grant leave for these arrears to be enforced, given the length of time that your client has accepted the variation of maintenance.

They have also quoted a ruling in the case of GW v RW to back up the position, although to be honest I dont quite understand the legal standpoint.

Is there a chance that a judge could grant leave and under what circumstances woud he do this? or would he have to follow the rules on this? I am prepared to let my ex go to court to pursue this as I think these matters come down to one's ability to pay. I have never beed dishonest regardig my income nor have I ever sought to withhold monies.

I have had to discharge my solicitor as I cannot afford to retain his services. Is there any free court services that I could contact to clarfy this situation or do I have to battle this out in court and chance havig to pay all costs. thankyou.
Re: consent order arrears
davidterry - 08 November, 2011 11:29AM
>>Is there a chance that a judge could grant leave and under what circumstances would he do this? or would he have to follow the rules on this? I am prepared to let my ex go to court to pursue this as I think these matters come down to one's ability to pay. I have never been dishonest regarding my income nor have I ever sought to withhold monies.<<

There is always an element of chance in any litigation. However, it is almost inconceivable that a court would grant leave to pursue arrears that are 7 years old. Say, for instance, that 7 years ago you had disappeared from the radar in order to avoid paying child maintenance. And say that you had emigrated to the US where you had been earning gazillions for the last 7 years. And say during those 7 years your ex wife had continually and diligently been trying to find you. And say now she had finally located you. Those may (just) be the sort of situations where a court could decide to grant leave but your situation is light years away from that. I would say that your ex wife's chances of recovering those arrears are vanishingly small. Of course, if you offered to pay them your ex wife's solicitors would cheerfully take your money. However, if they try to rely upon the courts I think they will find that all arrears more than 12 months old are statute barred.



Edited 1 time(s). Last edit at 08/11/2011 02:00PM by davidterry.
Re: consent order arrears
Big_G - 08 November, 2011 01:56PM
thanks David, very kind of you to reply so quickly. let her bring it on!
Re: consent order arrears
Axe - 13 November, 2017 10:26PM
I've just had a similar situation today.
I had a consent order from 2003 (its now 2017) and I was in full time employment until 2008 (when I lost my job)
in 2003 -2004 I missed made some payments and made some in cash (my stupid mistake)
in 2007 I missed some payments.
In 2008 I lost my job and the court varied the order.
in 2009 I started making voluntary payment to my ex which she accepted, I never left the country, I always had contact with my kids (until she stopped contact)
on 17 occasions I made additional payments (all evidenced by bank statements etc) but the court today decided that I should pay £1600 of arrears.
I can prove beyond doubt that the maximum arrears would be £950.
but the magistrates decided that in the last 14years I have accrued £1600 arrears, The 12 month rule for consent order arrears is bullshit. the magistrates can decide what they want, I tried to argue that they had done their maths wrong, but was told in no uncertain terms that I had to accept their judgement (whilst my ex sat there giggling)
the law is an ass.
full of corrupt people that are not interested in the truth.
the 3 magistrates demonstrated and accepted that my ex had lied about the arrears but still sided with her.
They awarded her arrears that had already been written off on several occasions,safe in the knowledge that I did not have legal representation so could not question their authority.

This is all a bit raw (as it happened today)
But the law in this country is shit, it appears to me that if you are a woman, and you start to cry in front of magistrates then you will get what you want regardless of whether its the truth or not.
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