Breach of consent order - what can be done?

[Johnogroats]

I have what I hope is a simple question. H and W divorced in this year and a Consent Order was drawn up covering child maintenance, under which c£1300 is paid by H to W for benefit of children...for childcare, music lessons etc as set out in CO. H is respecting this, but W is asking for more money...she has history of financial irresponsibility. There was a nominal order for spousal maintenance of £1 pa, but she got a large settlement and is virtually mortgage free, so it is not as though she is struggling financially. NB she has a job, is earning decent money and H has kids for almost half the time. i know it is not relevant to this issue, but she had a affair and walked out.

Question is what can or should be done? Can H vary CO to pay for lessons etc directly? Should H write to W solicitors making his points and saying unless the CO is respected, it will be necessary to go back to court? Any other suggestions? H does not want to spend more money on lawyers if at all possible.

Thanks!

Surely H and decide not to accept consent order. If H has 50% of childcare/contact then it is likely no maintenance is payable. Paying third parties directly is perfectly reasonable, just arrange it with the service providers.

They both agreed the CO. I think they could mutually agree that he pays providers direct, but there is the risk that she would use it against him, as it would technically breach the CO. is this a sensible option if he got her agreement in writing? The CO is legally binding... Having said that, I don't think she would agree. What is more likely us that she spends the money on herself or on grossly extravagant things for kids, then claims poverty. She will expect him to bail her out. But he can't afford to.

How has the order been breached?

A consent order is legally binding and enforceable and neither parent should unilaterally alter the arrangements within the first 12 months without applying to court for a variation. Alternatively if a variation can be agreed it can be documented in a deed or another consent order.

Unless the paying parent has a drastic reduction in their income it's usually not worth applying to court for a variation because after 12 months either parent can normally apply to the Child Maintenance Service for a calculation. The courts are then notified and the consent order ceases to have any effect with regard to child maintenance.

However the CMS can only take on a case when there is a non resident parent. If care is shared exactly 50:50 there is no non resident parent so the CMS can't do a calculation, the courts aren't notified and the consent order remains in effect.

She receives the maintenance and is supposed to pay for childcare activities as agreed between the parties....so the money has to go from her to third parties, or on occasion back to H who has eg paid the music teacher. If she doesn't pay him, she breaches the CO. so far, she has eventually paid, but if she doesn't, that would be a breach of the CO.

STIDW thanks for your advice, but it doesn't quite fit the situation. The paying parent H, is paying the money, but W s not applying it as per the terms of the CO.

Although it is expressly money for the kids, she is spending it on other things...lifestyle, expensive holidays etc. rightly H has no control over this, but when she says she has no money for the agreed stuff, there s a problem.

Hope that explains it better.

I'm not sure that what you are describing is technically a breach of an order.

Child maintenance is a contribution to all the costs of raising children - food, clothing, housing, bills, replacing furniture, decorating, holidays, transport, haircuts, toiletries, child care, equipment etc etc. Before the days of the CSA the courts would just divide all the household's living expenses by the number of people in the household to calculate the amount of child maintenance per child.

Usually the terms of an order state that £x is to paid to a parent with the majority of care for the benefit of children and it is left to the parent with care to decide how to spend the money. Sometimes there are descriptive parts of the document that record or note what was agreed but these aren't an order.

That's interesting. So in theory she could spend the maintenance on anything, not child related, or perhaps take them on a v expensive holiday, blowing the budget (I am not joking) and not be in breach? Even though the CO is quite specific as to what the money is for.

So the DCs school clubs, music and sports clubs etc don't get paid...and kids lose out unless H finds the money to pay direct? NB in reality H has DCs about 50% of time, although there is supposed to be a 9/7 split.