Order made at FDR obtained under duress?

[Dougal16T]

Good morning all,

Here is an interesting question (I think!):

Can an Order made during the FDR of a Divorce be overturned or amended?

I say this because my ex succeeded in getting an Order made for a 53.5% share of the property in her name. and liability for two joint loans to be taken by me.

This was due to pending proceedings against me in the Magistrates Court for entirely separate matters - which I am delighted to report were later dismissed by the Magistrates. (At the time of the FDR my solicitor told me to accept the FDR settlement as 'you do not want the DJ to make findings in the FDR which could be used at the Mags Court do you?')

Anyone any thoughts on this, I am currently reading up on Myerson -v - Myerson, and find this case fascinating, as our matrimonial home has been up for sale for over 2 years and has gone from £295000 to £225000!!

Best wishes to everyone

Dougal:beagle:

[Amethyst]

Re: Order made at FDR obtained under duress?

The 53.5% when you received the judgment was this written as a figure of the value at that time, or a simple 53.5% of the property?

The issues in Myerson were that the actually monetary figure was stated rather than the % in the order. £11 million ish as I recall.

Also in Myerson the figure was adjudged and the man made a decision to keep the money in the shares until the time it came to pay it, hoping to make more, as it happened things crashed and he then didn't have the money to pay - that was his choice and was a gamble.

The house, yes it is an investment, but there is nothing could have been done as the house hasnt sold. Plus it is jointly owned? I guess so long as it was on the market already before the order or straight after the order, its market forces rather than a concious decision. So I don't think you have a worry. Although if the order is a figure rather than a % you may have a point to argue.


It is an interesting case. around same time as yours wasn't it? Thats how come I came to read it whilst waiting for your judgment with HSBC to be published lol.


Edit: judgment http://www.judiciary.gov.uk/docs/jud...ce/myerson.pdf is quite interesting

was glad to hear you got your posession order suspended, not so glad to hear HSBC offered a cak amount no help to man nor beast - hope you will carry on fighting.

[Amethyst]

Re: Order made at FDR obtained under duress?

This would be the concerning part I think

39. Equally I am wary of the flood gates submission. There may be many who are
contemplating an attempt to reopen an existing ancillary relief order on the grounds of
subsequently encountered financial eclipse. All in that situation should ponder Hale
J’s analytical characterisation and ask themselves whether the events upon which they
intend to rely can be bought within either the second or the third category. Even then
they would be well advised to heed the warning that very few successful applications
have been reported. I echo the words of Hale J that the natural processes of price
fluctuation, whether in houses, shares, or any other property, and however dramatic,
do not satisfy the Barder test.

Now, Barder is where the house was due to be handed over to the wife, but before that was executed she died. Barder applied to overturn the judgment based on the change of circumstances. This has led to cases with 'unforeseen' massive change in circumstances going to court to overturn original order(and mostly it appears-failing).

There is already 20 years’ worth of court decisions which say that if an asset was taken into account and correctly valued at the time of the original decision, any subsequent change in the value of the asset, however dramatic, will not be a good enough reason to overturn the original decision.

Have a read of this - explains Myerson quite nicely.

Brian Myersons Credit Crunch Divorce - by guest blogger Robin Charrot

theres a variation of installment amounts still to be heard in July 09 still.

[Dougal16T]

Re: Order made at FDR obtained under duress?

Good morning,

Amethyst, my thanks for your thoughts. My replies to your questions:

The property was on the market prior to the FDR (and had been for about three months) at £295,000 and it was written in the FDR settlement that my ex would have a 53% share of the sale price once fees and outstanding mortgages were deducted.

The property has not sold thanks to a rapidly declining market and two years down the line is now on the market for £219,950 - a substantial difference and affecting my share!!

The question of possible 'duress' I mentioned is an interesting one..if you would like more details I'll be pleased to let you have them!

Is here anything you think I can do......all help VERY gratefully received.

By the way STILL waiting for HSBC to come back with a 'better' deal

Regards

Dougal

[Dougal16T]

Re: Order made at FDR obtained under duress?

Good evening everyone

Just an update,

Following a lengthy investigation by yours truly, I discovered that my ex lied in her affidavit to the Court during the divorce proceedings, and succeeded in getting a charging order held by Northern Rock plc against our joint interest in the home, put into my name only.

I reported this matter about three weeks ago to the Police and they have responded to say they consider that an offence of perjury has been committed by my ex, and will now investigate, arrest and prosecute her.

This means that the share due to Northern Rock will come out of our joint share of the proceeds, and not out of my share.

I do not know if I should apply to have the original order putting the charge into my name only overturned - what do you think?

Best wishes to all

Dougal

[Amethyst]

Re: Order made at FDR obtained under duress?

okay the order is in % terms so thats not a worry

so of two joint loans with second charges on solely your share of the property this Northern rock one is to go back to being joint ? I don't know whether it is better to try overturn the original change to sole liability or to simply apply for it to go to joint liability.

So you should end up with her having 53.5% of the property and joint liability on northern rock (and any other joint ones) and you having 46.5% of the property and sole liability on one loan ?

A percentage of the share of the property wouldnt be affected by myerson v myerson - that was a specific monetary value. Both shares will be depreciating at the same rate - the only issue is these joint loans charged just to you.

if she commited perjury with the NR loan do you still agree with the other loan being just your liability ?