PROPERTY

Property is a much more difficult issue. There are two aspects to this, firstly disclosure, that is what each party say they own and whether or not that is true. Secondly what might be regarded as a fair split of the assets.

Both sides might have a completely different view. Again the courts are there to sort it out if you are in doubt. Once a consent order has been agreed and sealed by the court this is usually a full and final settlement. It is recommended that anyone who is involved in property matters takes independent advice as to values and the likely outcome of any court application. The vast majority of these are settled at the doors of the court.

From a practical point of view the drafting of the consent order can prove difficult and a precedent is set out in the Appendix. The court will amend any glaring errors and comment on the fairness of any split, but will not draft the consent order for you.

If you are relying on the other side’s lawyer to draft it you may be in difficulty if you are making the application. Also you need to be sure that the consent order correctly reflects what you intended to be the outcome of the case.

The Child Support Act was originally introduced in 1991 and prior to that date consent orders had favoured lump sums to cover both the spouse and children’s maintenance, normally such as the transfer of the property. Therefore there were non-resident parents who had entered into a clean break agreement prior to the CSA 1991. They now face maintenance calculations and they obviously feel aggrieved as this undermines the original settlement. The formula was revised in 1995 to take into account such transfers. The CSA has the authority to overturn such arrangements.

If the CSA has insufficient information they may make a default decision and this may result in an interim maintenance application.

Occupation orders can be made without notice on the other party. A date is then fixed for a hearing. These orders are severe and can and will only be made when it is necessary to prevent harm and restrain someone from harm. The order might also arrange for the payment of money to finance the occupation of the property by the respondent through payment of the outgoings.

There may be an order to transfer the tenancy of the property, whether public or private, to one of the joint tenants.