February 8th, 2019
This is something that happens perhaps more than you might think. The key thing to think about in this situation is whether you are married or not and contemplating separation or if you are in a cohabiting relationship.
If you are married and reach a financial agreement following separation and within the context of divorce, you need to be careful.
If you reach an agreement and have taken legal advice and have shared with your partner your financial circumstances and have documented the agreement you have reached or even put an order into Court then there are only limited circumstances when you could feasibly extricate yourself.
If you have an order of the Court approved by the Court then it is almost impossible to extricate yourself except in very limited circumstances. An example of this would be the case of Edgar v Edgar, where the parties had entered into a post-nuptial agreement. The Court of Appeal set out a non-exhaustive list of relevant matters when deciding what weight should be placed on agreements, which should be examined in light of the parties’ conduct before and after their formation.
This list applies where there are:
Matters that the Court will consider to determine whether you will be held to the agreement are things like whether there was pressure by one side; whether one side exploited a dominant position to secure an advantage; whether either party’s knowledge of the situation was inadequate; whether one party received poor legal advice; or whether circumstances changed and these were overlooked or not foreseen at the time.
Lord Justice Ormrod in this case said:
“…formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement…”
However, the court has to consider as its primary consideration section 25 of the Matrimonial Causes Act 1973 (MCA 1973).
In another case, of Smith v Smith Thorpe LJ said that the existence of an agreement is but “one ingredient within a complex equation”.
Both of these cases still resonate despite them being dated now and it is for this reason that reaching an agreement needs to be done carefully. Whilst there is often negative press concerning divorce lawyers, those that specialise in financial considerations will be aware of the pitfalls that can arise on separation and can advise accordingly.
If you live with someone and are not married then this is an entirely different situation. If you find yourself in this position, please don’t hesitate to get in touch with our solicitors > https://bit.ly/2AAsmuk
Jo qualified as a solicitor in 1992 having completed her training at leading Cambridge firms Taylor Vinters and Thompson and Co. After qualification, Jo moved to J Garrard and Allen in Olney where she established the family department. In 1994 Jo was made a Partner at J Garrard and Allen and continued to build and develop the practice. Jo trained as a mediator with Resolution in 1996.
In 2001 Jo decided to set up independently and created a purely family law practice in Stony Stratford recognising that in fact the skills required by family lawyers and the expectations of clients experiencing relationship breakdown and separation were different from those required in other areas of the law.
Hawkins Family Law fields 'a very professional team that delivers a high-class service and has strength-in-depth from senior to junior level'. Managing director and team head Jo Hawkins provides 'clear and accurate advice and moral support through often testing times for her clients; she focuses on deriving the best long-term outcome for her client and other parties'. The practice has particular strength financial matters, including divorce and ToLATA proceedings. Other key figures include Loraine Davenport, who has strong collaborative law expertise and handles complex children cases and high-net-worth ancillary relief matters; Annabel Hayward, who focuses on complex financial provision and co-habitation matters; and Stacey St Clair.
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What the team is known for
Boutique family law firm that punches above its weight in terms of high-value and complex matrimonial finance instructions relating to business assets, pensions and substantial property portfolios, including assisting with the handling of assets abroad. Also represents clients in the negotiation of wealth protection agreements and private law childcare arrangements. Fields a team trained in collaborative law and alternative dispute resolution.
An impressed client says: "The team's personal service and individual care is a great asset,"adding that the lawyers are "always available to assist and understand the occasional need for immediate advice and guidance, providing a very reassuring service."
For more information please click here.