I will often speak with a new client who says they have “reached an agreement” with their spouse in relation to how their assets should be divided on separation or divorce. I am told that they both accept that their marriage has broken down and have sat down together to discuss what should happen to their house and other assets. Now they want to know how to make it legally binding.
Solicitors are sometime accused of “racking up” costs for clients unnecessarily and dragging out a case in order to line their pockets. I can quite firmly say that I am no such lawyer! If anything, I will always advise clients that the more they can agree between them, the better. The reason for this is two-fold. Not only will they keep their legal costs to a minimum by staying out of court but, more importantly, they will dissolve their marriage and part on as good terms as possible having reached an agreement they can both live with. There is no “winner or loser” as they have not had to endure a legal battle. An agreement reached between the parties themselves, voluntarily, is always more workable and favourable than an order made by the court.
Therefore, when I am asked to comment upon an agreement which my client has reached with their spouse, my responses are fairly simple:
- I will always commend parties on reaching an agreement that avoids costly litigation.
- I will advise that, as lawyers, we are unable to comment upon an agreement until such time as we have seen all financial information relating to both parties. This includes information about their respective incomes, all assets, liabilities, pensions etc, and is called full and frank disclosure. Once the solicitors for both parties have seen and considered all relevant paperwork, they are able to give advice upon a settlement.
- Once financial disclosure has taken place, and if the parties are still in agreement as to how they should divide their assets (whether this is against the advice of their respective lawyers or not), a document called a Financial Consent Order can be prepared. This document reflects what has been agreed between the parties and is signed by them both. A Financial Consent Order cannot be presented to the court until Decree Nisi has been pronounced. However, this does not preclude the parties from reaching an agreement earlier. Once approved, the order is binding upon the parties.
So, what if the parties do not want to go down the route of financial disclosure? Good question. If the parties have reached an agreement between them to which they are both happy, and they do not wish to enter into the financial disclosure process in order to seek advice upon the fairness or appropriateness of the agreement, a financial consent order can still be prepared. In these circumstances, the solicitors for both parties will ask their clients to confirm in writing that they have opted out of the financial disclosure process and understand, therefore, that their solicitors cannot comment upon the fairness or appropriateness of the agreement.
However, my advice is that there should always be full and frank disclosure of all relevant information before an agreement is reached and both parties should have the benefit of independent legal advice on the terms of that agreement. If not there is a real danger you agree to something only later to discover what you’ve lost out quite substantially
Family lawyer, Wolverhampton