Consent orders, maintenance and private agreements

[Lucy88]

Hoping I can get some advice on here:

Split up from my hubby 18 months ago and we had a private agreement regarding maintenance, access etc. He has always paid up to 2 months ago, when the direct debit didn't go through into my account. When I asked him, he made some excuse that the bank made a mistake. It transpires that because he has been going over his overdraft limit on a regular basis, the bank took his overdraft facility away. Its taken 6 weeks to get him to admit this. Now some would say I should give him time to sort his finances out, however the reason he is in such a mess with his money is because he has been following his football team to all their games in Europe and has been abroad every month for the past 8 months. This is why he has got in such a mess with money. Despite the fact he paid no maintenance last month he still went to Denmark watching his team. He's not paid anything this month either - but 'yes' he is still going away again on 10 days to watch his team.

Anyway, I want to make get our private agreement made legally binding through a consent order. No point in going to the CSA as I would get less than I do now. As he isn't paying any maintenance at the moment, I can't afford a solicitor, so I am planning to do the consent order myself and wondered if anyone else has done this. I'm not sure where to start. I know that I would have to pay court fees to do this as it wouldn't be part of a divorce hearing - have to wait until August to divorce him when we have been separated for 2 years.

He constantly changes the goalposts as well on what we agree. When we first split up, he would come and stay at our house over-night once or twice a month if I had to work away. He suddenly announced 3 months ago he wasn't doing it anymore as he never agreed to it. He's also said that he will not look after our son in any of the school holidays (he starts in September) - he won't do this as it means he won't have enough annual leave to take time off to watch his football team play. I have now put everything in writing and given him an agreement to sign - this covers maintenance, access, Christmas, birthdays, paying for clothes etc. He has had it 3 weeks and has made no comment as yet - he thinks if he ignores things they will go away.

Is it worth going for mediation first, or should I just go for the consent order. If I get a consent order, and he breaks the agreement, what action could the courts take? I would actually like to be able to get an attatchment of earnings, because that would mean I get the money before the bank can even touch it to pay off his overdraft.

Sorry to ramble, could do with some advice.

Thanks

I don't think a consent order about child maintenance will do you much good as either one of you can opt out, I think after a year, and make an application to CSA or CMec, or whatever it is now.

I would think trying to mediate is your best bet. He doesn't sound very mature about finances, to put it mildly. If he loses his job, how would you enforce?

There are ways to enforce court orders, but all involve further expense and hassle.

I would wait until August and try to tie everything up in the divorce proceedings - try and get as much capital as he doesn't sound like someone who will be reliable about paying regular sums.

You won't be able to get an order that makes him have contact with you son, unfortunately.

Cheers Spero - the thought has crossed my mind about waiting until August and sorting it all out along with the divorce.

You are right about him being immature regarding finances. It worked in my favour when it came to the house, as I paid the deposit, mortgage is in my name and I have paid for eveything in it, so he's agreed he has no claim on the house.

He's actually very good regarding contact with our son. He see's him 2 night's a week and has him every other weekend, although he does want more - as long as it doesn't interfere with his watching football.

Its just really frustrating that he thinks its ok to go abroad watching footbll, but not paying for his son.

A Consent Order isn't appropriate in your situation for numerous reasons. Firstly, the agreement must be with the consent of both parties and from what you are saying, there is a distinct possibility that your H may not consent to it or else consent initially and then not sign it.
A Consent Order is a very complex document to draft and requires complicated recitals, clauses and dismissal clauses to make it watertight and cover all areas and it would be almost impossible for a layperson to draft one which would satisfy the Judge. You really would need to have this document professionally drafted.
Another important issue is that you would be unable to lodge it at the Court at this time. This is because the Court does not have the jurisdiction to deal with it until Decree Nisi has been pronounced and if you are not commencing divorce proceedings until at least August, probably the earliest you would be in a position to lodge the Consent Order at the Court would be around November/December.

Another matter for you to consider is that you are intending to divorce on the basis of two years separation. You should be aware that you would need the Consent of your husband for this and that he would need to give his consent in the acknowledgement of service form which would be sent to him together with you divorce petition. He may well say now that he will consent to this but he can withdraw his consent at any time and simply ignore the papers and not sign.

You may need to consider issuing a petition on the basis of his unreasonable behaviour which does not require his consent and if he doesn't sign the acknowledgement form you can simply arrange to have him served with the papers pesonally by a process server who would then file an affidavit of service so the divorce could progress. From what you've said in your posts, you have grounds for divorce on his unreasonable behaviour.

As Spero has said, even if you did manage to draft the consent order and the Court approved it (after the divorce has been commenced and DN pronounced) your H could apply to the CSA/CMEC once a year has passed from the sealing (approval) of the Consent Order.

I think that you should consider mediation now, in an attempt to resolve issues in the short term and then if your H will not agree to this you should consider a petition on the basis of his unreasonable behaviour and issue an application for Ancillary relief (financial support) at the same time.

Also, sadly, the Court can not order your H to have contact with your son so you will just have to hope that he grows up. Again, mediation may help as he simply may not realise what a twat he is being and if he hears it in front of some third party, he might actually take it on board. Good luck