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Fault in solicitors Consent order

(28 Posts)
NotGettingAny Sun 23-Jan-11 11:58:45

I purchased a consent order from Wikivorce. You give the solicitor the details of what you and ex have agreed and they turn it into a consent order.

Done.

Except Ex changed his mind and is now refusing to pay maintenance as agreed in the consent. Within 12 months you can have the order registered at court for £35 and they will make the collections. Did that 6 months ago, but the court have now come back and said that the consent is merely an agreement 'the order made <date> is actually an agreement between parties and not part of the actual order'.

Basically the sol wrote the consent but left the bit about child maintenence above the legal wording saying 'by order' so it is unenforceable.

It's now 6 months since he's paid CM. There are arrears but I can't get them. Do I go through CSA or back to court to try and sort this. The sols are not responding to my complaint. I hope they will soon but am expecting to have to now get new sols to fight for some compensation for the failure of those sols whilst also fighting for CM. I opted for the consent order for a) a cheap option and b) an amicable divorce.

I'm tired and just feel the courts/sols are against me not helping me

TheVisitor Sun 23-Jan-11 12:01:57

The Law Society would put a rocket up your solicitor's arse, methinks. Complain to them. Get on to the CSA as they'll chase him for free, rather than having to pay to go through the courts.

NotGettingAny Sun 23-Jan-11 12:10:02

I placed a formal complaint with the firm that drew the order 3.1.11. They said they'd respond in 14 days but haven't.

I will contact the Law Society but am feeling rather alone and vulnerable at the moment.

I just wondered if instead of trying to cope and manage it on my own (which seems to have backfired dreadfully) I'd be better off paying a sol to act for me. Will TLS not just draw around there own and find some small print to get shot of me?

FamilyBarrister Sun 23-Jan-11 12:17:30

Even though I would never recommend anyone uses this method, it seems whoever drafted the consent order was constrained by the law.

Since the Child Support Act 1991 courts have had no power to order chilld support in orders, only spousal maintenance (known as periodical payments). Therefore, if your ex refused to consent to child maintenance being part of the actual order itself (under the line that says "IT IS ORDERED THAT:") then it has to go into the "preamble" of the order (the introduction) and it therefore is generally considered unenforceable.

A lot depends on the papers, the wording, the date of the order etc but the above is the general rule.

Your first port of call is the CSA (or CMEC as it is now known) because, as has been stated above, it won't cost you ought.

NotGettingAny Sun 23-Jan-11 12:23:18

He didn't refuse at the time that the order was written. He wanted to agree it

He changed his mind when I started a new relationship

The questionaire asked what we wanted in the agreement and we stated included CM. They moved it above the 'by order' line without discussion and it is only now that I am aware of the significance

NotGettingAny Sun 23-Jan-11 12:27:33

Basically I gave him 50% of equity.

I have not asked for maintenance but we agreed CM at a rate slightly less than CSA website suggested and this enabled me to stay in house and pay a considerable mortgage

So he has renaged on the CM and the way the order was written means that he can although the 50% equity can be handed over because that stands?

I think I'd agree with you about using this service

I have been royally done over

NotGettingAny Sun 23-Jan-11 12:29:48

I paid for all costs

I just wanted to be divorced because he is a financial liability

If I'd gone to sols we could still be fighting and the amount I have lost in CM would have been spent on sols instead of going to the ex.

Either way I lose.

Resolution Sun 23-Jan-11 12:38:48

Sounds like you have the making of a claim against the solicitor, but provided you were the client. Go to the CSA asap to start their involvement.

NotGettingAny Sun 23-Jan-11 12:39:41

Hi FBarrister

Can I ask how what you've written fits with what I've just read on CMEC site:
^A Consent Order is an official ruling made by a court. To put in place a Consent Order, both parents need to agree how much child maintenance is going to be paid and how often.

You can do this either privately between yourselves or through solicitors. You can then apply to the court to turn this agreement into a Consent Order. But you should be aware that a Consent Order about child maintenance almost always happens only when people are going to court for other reasons, such as arranging a divorce or dividing property or other assets.

After this, if the parent without the main day-to-day care fails to pay the child maintenance agreed in the Consent Order, the court can enforce payment. During the first 12 months of a Consent Order, you cannot ask the CSA to put an arrangement in place for you.

You should be aware that putting in place a Consent Order does involve legal costs, such as solicitor and court fees. Legal aid will not cover these costs if you are only going to court to get a Consent Order for child maintenance.^

FamilyBarrister Sun 23-Jan-11 12:43:03

He may have agreed it going in the preamble, but this is very different to agreeing it would go in the order proper.

If it does appear in the preamble, then you are in difficulties. Either way, the difference and distinction should have been explained to you.

You can still make a referral to the CSA as they still retain jurisdiction, it seems from what you say.

I'm quite surprised you paid all costs, as most cases are paid on no order basis, meaning you each pay your own, or split them equally.

STIDW Sun 23-Jan-11 12:50:33

Did you take independent legal advice? My understanding is that online services often use a disclaimer when no advice is given that covers their back.

mumoverseas Sun 23-Jan-11 12:56:30

I'm so sorry to read about your problems Notgettingany but I have to say this is a prime example why it is essential not to cut corners when resolving ancillary relief (financial aspects of divorce).

Have to admit I'm not familiar with wikidivorce (will have a mooch in a minute) but presume their advisors must all be qualified lawyers and that you get T & C etc?

NotGettingAny Sun 23-Jan-11 12:56:57

STIDW - that is exactly what I'm expecting as a response (a small print wriggle out)

No I didn't because the whole point of agreeing our consent and getting a firm to write it was that we wished to avoid paying for sols and getting embroiled in sols suggesting either of us fight for more. It was a simple questionaire - what do you want included: CM at level stated/equity division/no pension sharing/no spousal maintenance and I thought it was cut and dried.

I didn't realise that I had to pay a sol to check the order to make sure it did what we wanted

Ex and I both agreed the order because it covered the details we'd agreed. The fact that the way it was worded meaning that parts of it are not legally binding was not brought to out attention - it was drafted in this manner. If I had wanted to write on a bit of paper ex will pay x pounds per month for his children it would have same enforceability and I wouldn't have paid a solicitor to write that out for me........ I was expecting it to be binding!

NotGettingAny Sun 23-Jan-11 13:02:05

The distinction was never explained to me. I am the client. I paid all costs because he wouldn't.

I could have asked for costs but I just wanted out.

I honestly thought I was a) being fair to him giving him 50% equity and b) having amicable divorce avoiding prolonged litigating argument c) using a firm which would give us the consent order described in CMEC site You can do this either privately between yourselves or through solicitors. You can then apply to the court to turn this agreement into a Consent Order

As it is I have paid to give him 50% of the house and the courts have taken since last July to tell me it's not binding.

FamilyBarrister Sun 23-Jan-11 13:08:29

I agree with STIDW. That's my understanding too.

NGA: this is what I mean about the wording of the document. Basically, if it appears below the IT IS ORDERED line, it is "an order". If it appears above that line, it generally doesn't count as a court "order". I imagine the wording reads something like:

AND UPON the husband agreeing to pay the sum of £x in Child Maintenance on the first working day of each month, payable in advance....

If that is the case, then it is not part of a court order, even though it's contained with the same document.

Interesting, if the wording is "the husband undertakes to pay" then you could enforce it by bringing him to court for contempt. This would get him a telling off from the Judge, a fine or a possible term of imprisonment, but this doesn't help you get your money.

Hope that makes sense.

NotGettingAny Sun 23-Jan-11 13:21:12

I think the sol was a misogynist! Every line involving financial committment from me starts 'the Petitioner undertakes'

his responsibility is worded as AND UPON it being recorded that the Respondent will continue to pay

STIDW Sun 23-Jan-11 13:23:07

Grr.. in my experience online services are frequently a false economy.

FOr a consent order to be as watertight as possible there requires to be full disclosure, independent legal advice and the agreement should be fair (ie comply with s25 Matrimonial Causes Act 1973 and other laws).

I am familiar with Wikivorce and I believe they do have a clause about seeking independent legal advice. Sadly too many divorcing couples don't realise the significance that because they weren't given advice they cannot claim negligence.

All you can do is chalk it down to experience, apply to the CSA and perhaps complain to consumer groups. The problem is that certain consumer groups campaigned for "Tesco law" and don't seem to be interested in the problems that have arisen.

NotGettingAny Sun 23-Jan-11 13:28:38

I suspect you are right STIDW

If only they had made me aware that the CM details were not going to be included I would never have agreed to the order.

I bitterly regret using the online company.

prh47bridge Sun 23-Jan-11 14:29:55

Agree with the advice that has already been given. I would just add that even if the consent order had been drawn up correctly, either party, you or your ex, could apply to the CSA to sort out child maintenance 12 months after the order was made. So if the maintenance in the order was higher than the level the CSA would calculate your ex would have been able to go to the CSA to reduce the amount of maintenance once the 12 months were up.

Resolution Sun 23-Jan-11 17:12:41

NGA - just because they say that you must get independent advice it doesn't mean you don't have a case against them.

Do you have their terms of business and a client care letter? Are they actually solicitors? Solicitors can't act for both, and the warning to take independent advice causes me some unease.

The point thta I need to make is that they don't seem to have done what you asked them to do. This in itself should give rise to a claim against them

NotGettingAny Sun 23-Jan-11 19:05:48

prh - I know that about the 12 months. We agreed an amount less than the CSA website calculations and at a level to enable me to pay a mortgage. It meant he could walk away and I could cover the bills.

I could now go to the CSA but suspect I'd get none of the arrears. He has suggested he may agree new terms and reduce his % of equity in order to reduce his payments.

He is very much a live for now (spend spend spend) man and this financial attitude is cause of our divorce (along with abuse...alcoholism....neglect of kids hmm)
I suspect he doesn't actually mean to follow that offer through but thinks he is stalling me making a claim through the CSA.

Resolution - I will phone sols tomorrow and intend to a) resolve CM issue and b) tackle the sol firm who I paid to convert an agreement into a legally binding document which they failed to do

Resolution Sun 23-Jan-11 19:46:01

The CSA can only deal with it's assessment - so you're right in that you can't go after any arrears through them.

What familybarrister says about applying to enforce an undertaking through contempt is correct. Might be worth a throw of the dice. It'll at least scare the pants off the wastral.

dbno Sun 23-Jan-11 22:28:42

I am a member of the Wikivorce management team and came across this post.

For those not familiar with Wikivorce - it is an online divorce support community that (with the help of some government and charity sponsorship) provides support and advice to 50,000 people every year in the UK.

Wikivorce also offers fixed price services such as Managed Divorce and Consent Orders. Unlike most 'online divorce sites' all of the services are provided by experienced family law solicitors.

NotGettingAny,

I am very sorry to hear that you had a bad experience. I note that you have made a complaint to the solicitor that provided your service.

I don't really want to discuss the specifics of your case on this post - but you do have all of the protections and complaint procedures available to you - the same as if you had used a high street solicitor firm.

In fact the firm who drafted your Consent Order are a fully fledged high street family law firm so the SRA, Law Society and Legal Ombudsman are all organisations you can approach.

Also feel free to call our helpline on 0808 2255 9454 and we would be very happy to discuss this issue with you and to chase up the solicitor on your behalf. We will do our utmost to resolve this issue to your satisfaction.

NotGettingAny Mon 24-Jan-11 07:17:20

I have already been in touch with Wikivorce management. I contacted you first, since the sale of the fixed price consent order was through you.

You told me then, to go back to the sols as it was up to them.

I have contacted them as I say, 3rd Jan and they promised a 14 day reply.

I'm still waiting and don't hold out much hope of them saying gosh yes we're sorry.......

I really do not need this stress on top of the other stress involved with divorce.

I did speak to you with concerns around the time of the sale (I was very upset about the wording of the terms and conditions threatening extra payments per phone call when I thought I'd paid for a fixed price). You were very good at the point of sale, reassuring me then. :-)

But sadly the 'legal' doc I have ended up with is unenforceable in law and I'm owed months of CM. The court cannot enforce payment so I would be interested in how you think you can?

Resolution Mon 24-Jan-11 07:18:41

Thanks for clearing that up. Looks like NGA has all the usual protections.

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