"I thought we were dealing with this amicably..." - How amicability can be used as a stick in divorce financial matters
- AuthorNeil Denny
Something is going on
I am being inundated with the following new client enquiry.
Client: Hello, I'd like some information please about financial orders and clean breaks.
Solicitor: What is the situation?
Client: We have separated and applied for our divorce online. It has all been very amicable. We have reached the conditional order stage and we just need help to draft the financial order.
Solicitor: I see. How far have you got in discussing a financial agreement?
Client: Well, we have already sold the house and split the proceeds of sale equally, because we have sorted things out amicably. And I have agreed not to go after their pension, because we are sorting things out amicably. I don't want any maintenance, because we're dealing with things amicably. So we just need a clean break order.
I was recently delivering a talk to will writers and estate planners and I discussed my hypothesis that something was happening, along these lines, as the opening hook for my talk.
Upon my return to the office I had three new client enquiries to call back.
They all followed the script above.
At the time of writing, I have, just moments ago, put the phone down on yet another, similar new enquiry.
WHAT IS HAPPENING?
I have long believed that financially dominant parties take legal advice, often secretively and even while denying that they have done so. They learn what level of financial provision they would have to make to their partners upon divorce. Having taken advice – or just intuitively sensed what a divorce might cost – they embark on a campaign of what we might call "Amicable coercion."
This campaign sees the financially dominant party trying to skip financial disclosure, keep their spouse or civil partner away from legal advice, lest they learn for themselves what the likely level of provision might amount to, and rapidly advance the financial resolution to settled terms.
All of this gets dressed up as "Amicability."
- "Oh you don't need to see my bank statements/payslips/pension values because we're dealing with things amicably."
- "You don't need a solicitor because we're dealing with things amicably."
- "You can trust me to share matters with your fairly because we're being so amicable."
- "Look, I've prepared this spreadsheet to show what I am going to pay you after the divorce and how the finances will work because I want to make sure you have got enough and, of course, I want to sort things out amicably."
IS AMICABLE COERCION INADVERTENTLY FUELLED BY THE NEW DIVORCE PROCESS?
This amicable coercion has been fuelled by the changes to the divorce process in April 2022 which removed grounds for divorce. This was done, quite explicitly, to reduce the potential for conflict. That is commendable but it is resulting in unintended consequences.
This goal on the part of legislators conflates with procedure that is commonly mis-understood. There is a widely held view that you should, even must, file an agreed financial order once you get to the conditional order stage.
That is not the case.
The conditional order stage is merely the earliest that a court can receive and consider a financial agreement, if you have been able to reach an agreement.
I am seeing far too many potential clients being bounced or harried into agreeing terms because they have been led to believe that everything has to be agreed and filed 20 weeks after the divorce has been issued.
SETTLE MATTERS OUT OF COURT, BUT BY INFORMED CONSENSUS
I am a big believer in settling matters outside of court, I have even written a book on how to do so. This article is not, therefore, that of a solicitor trying to stir things up to make work for themselves – an allegation that is frequently deployed as part of the amicable coercion strategy. "Oh, they would say that, wouldn't they?"
The problem though is that individuals are being led to believe that they have to agree finances and file that agreement at court within a fixed time. There is a perceived sentiment that disagreement is bad or even forbidden and that any question, hesitation or desire to take independent legal advice equates to disagreement.
Amicability is used as stick.
If questions are asked or unilateral proposals rejected, then the retort is "I thought we were dealing with this amicably."
They get accused of being difficult, greedy or litigious when all they are doing is asking reasonable but unwelcome questions.
They are made to feel ashamed and very often fall back into compliance dressed up as amicability.
AMICABILITY AND ACQUIESCENCE ARE NOT THE SAME THING
Amicability does not mean the absence of enquiry, consideration or self-protection.
Amicability does not mean the absence of informed negotiation and settlement.
Amicability does not mean take what you are offered or else be branded as being non-amicable.
It is possible to ask questions amicably. It is possible to debate matters amicably.
If an agreement cannot be reached it is even possible to seek assistance from a third party whether a judge or arbitrator, amicably.
Being amicable means being courteous and respectful. It cannot be allowed to mean do what you are told, take what you are offered and don't ask questions.