What to do if your split is amicable but you don’t want to go to Court
When marriages break down, couples are increasingly attempting to resolve their financial claims between themselves, rather than instruct solicitors. Some couples do so for a quick resolution to their situation or to avoid costs. Others believe that they can see an obvious fair solution to their dispute and an agreement arises easily.
It is tempting to think that if you have reached an agreement with your partner, this will be honoured. However, because an agreement has been reached does not mean that it is binding. As a result of the marriage both parties will have claims against each other for financial relief under the Matrimonial Causes Act. These claims can only be severed by an order of the Court, whether that Order has been reached by agreement or made by a Judge. Without an order, the agreement is not binding on the parties and, if one party attempt to renege on that agreement, this can be very difficult to enforce. To enforce the agreement, one party would need to bring the matter to court and show the judge that, not only was an agreement made, but that the Court should uphold it.
The best way for the parties to protect themselves and make sure that the agreement is enforceable is to prepare this into a Consent Order and file this with the family court. If this Consent Order is approved, it will become a binding and fully enforceable Order of the Court. Neither party will then be able to “get out” of the provisions of that Order.
Preparing a Consent Order
Preparing a Consent Order is usually a relatively simple step for a family solicitor and the drafting of this order can be done quite quickly, if the agreement has already been reached. It is often a matter of advising your solicitor on the agreement you have reached, so that they can turn this agreement into a Consent Order.
When coming to an agreement, you should always bear in mind that, when the Consent Order is filed, the Judge considering the order does have significant powers. If the Order is not fair and does not meet the parties needs, then the Consent Order may be rejected. If you or your spouse are to receive a significantly larger share of the assets or income there must be a good reason for this. If you are in any doubt, you should consider discussing the matter with a solicitor, so that they can assist you.
When you can't reach an agreement
Of course, sometimes it is not possible for couples to reach an agreement because one or the other does not know the other’s financial circumstances.
Naturally, any solicitor’s advice will be that the parties should obtain such information before an agreement is reached, so that the parties can be confident that the agreement is fair and that it does include all the marital assets. Although the Courts can make separating couples provide this information to each other, it is quite common for couples to exchange this information on a voluntary basis, without the Court’s involvement.
This is very often in the Court’s standard Form E document. Carrying out a voluntary exchange can help to keep the separation amicable while allowing the parties to understand each other’s position. After the financial information is exchanged, a solicitor will be able to advise you on whether any agreement you have reached, or are considering, is fair or not.
Even if your separation is amicable, and you and your spousal are acting with the best will in the world, you should never shy away from discussing the matter with a family lawyer to make sure that you fully advised, before entering into a agreement. It is better to know your rights and entitlements rather than regretting having not done so in the future.
At Watson Thomas our staff can work from home and access all systems so even if all are required to self-isolate this will not affect the day-to-day running of your case. We can also hold appointments via telephone and video link as needs be to ensure that your service is not interrupted.