The devil is in the detail. Never is this phrase so true as when drawing up a financial settlement as part of a divorce. The financial settlement, enshrined in a Consent Order from the court, can cover a huge range of issues, such as what will happen to any property, pension entitlement, how the bank accounts are divided up and what happens to any savings. And it is perhaps because people are focused on these big picture items that they rarely stop to think about the details which actually make those big things happen. Without an experienced family lawyer to advise and make the order water-tight, you might be lulled into a false sense of security on your share of the spoils of marriage, or at least end up with some additional costs or last minute negotiations with an ex. And in the current climate where we are seeing more people deciding to represent themselves in a bid to save a bit of money on solicitor’s fees, more people are going to be falling foul of loopholes, ultimately costing themselves more money.
For example, you have agreed with your ex that the title deeds of the house will be transferred into their sole name or that they will buy out your share. That is detailed in the agreement and signed off by the court. Then it gets down to it – who is going to pay for the fees involved in making that happen? This may not be a small amount and if it is not detailed in your agreement you may find you're battling all over again.
Or it could be that your ex decided they are not going to follow what is set out in the consent order. What then? How is it going to be enforced and what is the penalty?
The settlement needs to be both legally binding and practical. Unfortunately, an emerging trend for barristers to be advertising directly for clients in divorce cases is leading to an increasing number of legally sound, but practically unworkable agreements being reached. Rightly or wrongly, people have a perception that a barrister is superior to a solicitor. If they are charging reasonably, the temptation to get a barrister to represent them in any court hearing is too much to resist for some. And while the barrister will be top notch at arguing the legal case, they may not have the practical experience in writing and negotiating workable agreement.
So how do you get around this? Well, engage an experienced family law specialist and talk through every detail with them! If you think something is missing, tell them. If you see potential issues with a suggested solution because it does not fit with your unique circumstances, tell them. And this advice goes for everything, not just the finances, but arrangement about the care of your children also. For instance, it may be agreed that the non-resident parent has the children to stay every other weekend. They live 100 miles away and you do not drive. So make sure you consider the transport arrangements and how they will be funded.
Once a Consent Order has been approved by the Court, it cannot be renegotiated through the court system, so be sure you have covered everything before signing off on it.
A Consent Order is not a pro forma. It is tailored to your situation and can include as much detail as you want. Think of it as an insurance policy, but one where you dictate the small print before agreeing to the policy. Yes, the more detail there is, the more time it will take to draw up and so the likelihood is it will cost you a bit more up front, but it may save you in the long run.
Think of it this way: if the average spend on a wedding in the UK is £20,000, is spending £1,000 to unpick it that expensive?
Family law solicitor, Birmingham