What an Agreement is ...... and is not
- AuthorSameena Alladin
The impact of the end of a relationship, whether through separation or divorce, can cause stress for all involved, especially if disputes arise that seem intractable. Nevertheless it is vitally important to remember that the fundamental aim is to resolve the matter by agreement, as amicably as possible.
Where financial matters are an area of contention within divorce proceedings, the requirements of the Matrimonial Causes Act section 25 must be fully considered. So must the needs of each party and any dependent children when considering a fair and reasonable settlement, regardless of the fact that Court Proceedings have not been issued, and negotiations are being conducted via solicitors.
Adopting an approach which tries to reach agreement does not mean that matters are not dealt with robustly. Rather it adds merit to the conduct of negotiations, because it will be clear that the needs of each party and any dependent children have been taken into account in any proposals to settle the matter.
Key considerations include:
a. Ensuring that a client does not act to his or her detriment when attempting to resolve matters amicably and by agreement. Therefore, the voluntary exchange of full and frank disclosure of each party’s means and assets, with current evidence in support, should take place via an agreed format / timetable, avoiding unnecessary delay. Thereafter, a schedule of assets and their values should be agreed, so that the available equity for sharing is clear.
b. Seeking independent expert advice if this will help clarify the value of an asset / how best to share it. For example, in relation to business assets, pensions, investments etc.
d. Finalising the agreement reached by way of a Consent Order in order to give it legal effect and to achieve a clean break if this is required.
Attempted agreements regarding financial matters within divorce proceedings are not about:
i. Attempting to persuade the other party to act to his or her detriment;
ii. Seeking to avoid disclosure of assets, regardless of whether or not the other party is aware of their existence;
iii. Withholding pertinent information which could have a bearing upon the intended settlement.
iv. Expecting the other party not to bother with the exchange of voluntary disclosure, or taking independent legal or other expert advice.
v. Obstructing the conclusion of the matter via a Consent Order. If a party resists entering into a Consent Order once an agreement is reached, it is not possible to achieve a clean break regarding potential future claims, and an application to the Court for a Financial Remedy may become necessary.
Avoidance of the proper conduct of negotiations, including the exchange of full and frank disclosure, can lead to the setting aside of a Consent Order therefore, it should be remembered that resolving matters by agreement is not a “soft” option, and requires a commitment to the conduct of negotiations in an open and diligent manner.
It is important to obtain independent legal advice if there is any doubt regarding an agreement reached after a separation or during divorce proceedings.
If you would like any further advice regarding this, or any other, family law issue please contact a member of our specialist Family Law Team.