I have a Mesher Order (still awaiting final draft from court) that I have
two issues with. As background, council could not agree on the wording of
the order so the DJ called a further hearing for clarification of
Judgement.
First Issue. The judgement stated that the
Applicant was to '...continue to pay the mortgage and any capital
element...'
I now have an order excluding capital repayments
completely, as the DJ stated at the second hearing that his intention in
the judgement was for the 'current' mortgage at the time of the hearing to
continue. At the time of the hearing the mortgage was interest only,
although he apparently stated at the second hearing that he did not know
exactly what basis the mortgage was at the time of the original hearing.
So using the DJ's logic, if I had been paying the mortgage
including capital at the time of the first hearing, then my ex would have
had to continue paying this. Surely the basis for the DJ's argument is in
error. In court, my ex's financial needs were reviewed in detail,
including a claim for spousal maintenance, and a detailed comparative
budget was presented and cross-examined. How could a DJ then make a
decision regarding such things as spousal maintenance and capital repayment
with such uncertainty over the basis of the mortgage?
The
result of this means that a £110,000 mortgage will not be repaid however
capital was specifically referred to in the judgement, so I am very much
out of pocket!
Second Issue. I understand that if the
family
residence is sold (under
a Mesher Order) then this is one of the triggers for settling the charge, -
as the reason for it being retained is for the children's security. The
reasoning being that it the house is sold after the hearing then it could
have been sold before it.
My draft order has a clause stating
that the Applicant can sell and reinvest the gross proceeds of the sale in
another property. There is no reference to this matter in the judgement
whatsoever, so how can the DJ in making the order (at the second hearing)
insert this clause.
Surely this also goes against normal
Mesher Order principles. In theory my ex could under this order sell the
house and move presumably anywhere in the world, to Spain for example and I
would have no security over my charge.
I have already spent
£,000's on lawyers however my solicitor did not advise me of the second
'clarification' hearing, or send me a copy of the draft order before it
went to court, so I don't know exactly what was said by the DJ a the second
hearing prior to him making the final order.
Any assistance or
suggestions would be appreciated, do you think I have grounds for an
appeal? Should I spend more money getting what I believe is fair?
MJ
Forum 
England and Wales 
