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What Happens If I Make an Agreement Regarding Finances and Then Change My Mind?

May 3rd, 2019

This is something that happens more than you might think.  The critical thing to think about in this scenario 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 within the context of divorce, then you need to be careful.  If you have reached an agreement, taken legal advice, shared with your partner your financial circumstances and have documented the agreement you have reached, there are only limited circumstances in which 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. A good example of this would be the case of Edgar v Edgar.  

In this case, both 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 included: 

formal maintenance and separation agreements 

post-nuptial agreements 

agreements reached in solicitors’ correspondence 

heads of agreement not yet embodied within a sealed consent order 

The types of information the Court will consider to determine whether you will be held to the agreement include whether there was pressure by one side, or whether one side exploited a dominant position to secure an advantage. They might also consider 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 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 position to which see the rambling ‘I’ve been promised the earth by my cohabitee – can I rely on it?’ 

 


 

Written by

Jo Hawkins

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.

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  • Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

    Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

    2019 Family: Beds, Bucks, Herts and Middx – South East

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    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.

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