As family lawyers, despite the common misconception, we will always encourage separating parties to utilise private discussions and mediation at an early stage to try to reach a settlement outside of the court process. This avoids a lengthy and expensive dispute and helps to keep things as amicable as possible.
If you have managed to reach an agreement privately, one party will now need to instruct a family lawyer to draft the order and supporting documentation to file with the court. However, it is important to note that the solicitor will only represent the instructing person’s interest and not your collective interests. Therefore, it is advisable that each party instructs an independent solicitor to provide advice on the agreement in order to ensure that you are not disadvantaged by what has been agreed. We’ve highlighted some key considerations below that a family lawyer may discuss and consider with you.
Is There Enough Information Available to Consider If the Agreement Is Fair?
When instructed by a client, voluntary disclosure is always proposed as the starting point. This involves both parties providing documentation to show their income, pension values and sums held in accounts as a minimum. This means that the matrimonial pot can be assessed before accurate advice on whether an agreement is fair can be provided.
If you have agreed a settlement without any disclosure, there is a chance that your agreement may not be fair. If your spouse has solely controlled the finances throughout the marriage, it is possible that full disclosure of assets may not have taken place and there may be assets your spouse seeks to protect. It is important that full disclosure does take place so that you can be confident that fairness has been achieved.
Is There Pressure to Sign Documentation?
It is not uncommon to find that when an agreement has been reached privately, one spouse will pressure the other into promptly signing an agreement. It is understandable that moving out of the family home as quickly as possible may be your main priority, so signing the agreement may allow you to do so. However, it is advisable to take a period of reflection and seek some initial advice from an independent solicitor before agreeing to sign any documentation. Once the agreement is approved by the court, it is legally binding.
Have Your Needs Been Adequately Met?
One of the main guiding principles in the family court is needs. The starting point is equal division of assets unless one party’s needs require unequal division to ensure that the settlement is fair. It is important to consider what your immediate needs are as well as your long-term financial needs; especially if it has been a long marriage. It is also worth considering whether a pension share is appropriate to equalise income on retirement or whether your case is suitable for spousal maintenance. These things should be fully considered before agreeing to sign an agreement.
If you are unsure if the private agreement reached between you is fair, it is always worth seeking some initial advice from a family lawyer. Please contact Zoe Worthington on 0161 475 1234 or email [email protected] for further guidance.