3 reasons why you must get legal advice on any financial agreement you reach on divorce or separation

Once an agreement is reached this should be put into a formal document to ensure that the terms of the agreement are clear, fully understood by both of you and will protect each of you from possible further claims in the future.

If there is a divorce or other financial proceedings, the agreement can be approved by the court and an order made in the terms of the agreement.  If there are no proceedings a Deed of Agreement (often referred to as a Separation Agreement) can be prepared.

You must have expert legal advice on any financial agreement you reach to ensure that:

  1. The terms are fair and appropriate to your circumstances. Even if you are content with the proposed terms, the agreement is reached at a time when you are emotionally vulnerable and we can look at the situation more objectively and consider the effect of the terms and any potential pitfalls.
  2. The terms of the proposed agreement can be enforced in the event that there is any problem with carrying it into effect.
  3. The Deed or Order closes off all future potential claims, unless it is necessary to keep any claims ongoing – such as spousal maintenance.

It is preferable for both of you to have representation from separate solicitors when the agreement is being drawn up.  You both need to be sure you understand the effect of the terms and that the agreement works for both of you.  If one person later feels that they have been treated unfairly or taken advantage of it can lead to resentment.

We always suggest exchanging financial information and, if there is a property, we check the title.  The reasons for this are:

  1. Even if you think that you are both clear about your financial circumstances, there can be things that are overlooked which we can pick up on – such as an unused joint account, a debt in joint names, an old pension fund which has been forgotten. These all need to be included to avoid issues later.
  2. There may be problems with implementing the terms of the agreement because of issues you were not aware could be a problem, such as mortgage arrears, a debt which has been repaid but remains on the title to the property, or restrictions on being able to share a pension fund.
  3. In some cases one person can be pretending to be in a worse financial position than they really are and by going through the financial disclosure we can usually identify where there may be additional assets or income which has not as yet been disclosed.

It is essential, even in cases which seem to involve the most straightforward of agreements, to take legal advice and exchange financial information.  Investing in getting good legal advice will ensure that you are moving forward into your future secure in the knowledge that your financial arrangements have been resolved properly and in the best way possible for you.  It may seem an unnecessary expense at the time but it will save you far more expense in the longer term and may avoid several years of worry.

You can trust Harrogate Family Law to help you.  We will be thorough to ensure that you can move forward with confidence that your financial arrangements are the best they can be.

If you need help with your divorce contact us on 01423 594680.

Andrew Meehan is an experienced family lawyer specialising in complex divorces involving significant or hidden assets, as well as cases involving children.

He is recommended for family law by both Chambers 2018 (York, Hull and surrounding regions) and the Legal 500 2017 (Leeds/West Yorkshire and North Yorkshire region).

Everyone’s circumstances are different and this article is provided by way of general information only and must not be replied upon.  If you require legal advice on a family law issue, please feel free to contact us by emailing enquiries@harrogatefamilylaw.co.uk.

What are the risks when you delay making a financial claim in divorce proceedings?

A common misconception in divorce is that a financial claim cannot be made once a Decree Absolute has been granted. In reality there is no limitation period for bringing a financial claim after divorce and there have been a number of very high profile cases recently where financial claims have been brought many years after the marriage had ended.

Aside from the stress and inconvenience of having to revisit your divorce settlement years down the line, there are a number of other reasons for making sure all the loose ends are tied up during the divorce process.

A cautionary tale

Mr and Mrs B had been married for 18 years before separating. A Decree Absolute was granted in 2005 but there were no financial orders made at the time.

Eight years later Mrs B applied to the court for a financial order. During that time Mr B had continued to operate his business, which formed part of the marital assets. Mr B argued that an agreement had been reached in 2005 when they divorced. Mrs B claimed that she had been waiting for Mr B to clarify his financial situation before making a claim. The judge found that she had suffered intimidation at the time, with Mr B refusing to respond to her requests for financial disclosure.

The family court judge found in favour of Mrs B and Mr B took the case to the Court of Appeal, claiming that the judge had been wrong to conclude that an agreement had not been reached in 2005, that the delay in bringing the claim should be a factor and that consideration had not been given to his contribution to his business since the divorce. He was also concerned that the delayed financial claim did not take into account the value of assets at the time of separation. Mr B lost his appeal.

What constitutes an enforceable agreement?

In order to finalise a financial agreement both parties need to fully disclose their financial affairs. This is important because without this transparency there is no way of knowing for sure what each party is entitled to and what constitutes a fair division of assets.

Many couples believe they have agreed a settlement when in fact it may be dependent on full and frank disclosure being provided. Without full disclosure the agreement is open to challenge at a later date. If one party has gone on to build a successful business or to generate significant wealth, the value of the settlement could be much higher than it would have been at the time of divorce.

Why should a stay at home spouse be entitled to a share of the other’s business after divorce?

The family courts value the contributions of homemaker and breadwinner equally which means that a stay at home husband or wife may be entitled to a share of their spouse’s business assets even if they have never worked in that business or contributed directly to its success.

Taking into account recent court cases, a delayed financial claim tends to look at the value of the assets at the time of the claim. This is because the judge considers that the stay at home spouse’s share of the business has been instrumental in the running of the business since divorce and its value has been put at risk by the failure to reach a settlement sooner. The courts may decide to reduce the claimant’s share, however, to take into account the delay in issuing the claim, particularly if it is made many years after the Decree Absolute.

Does it make a difference if a lump sum has been paid at the time of divorce?

The amount of the lump sum will be taken into consideration, as will the length of the delay, but it does not prevent a claim being made for full financial provision unless it has been paid as part of a financial order following full disclosure.

How to avoid delayed claims

We would always advise that financial matters are clarified and settled during the divorce process and this involves both parties participating in full financial disclosure.

Delayed claims can cause financial and emotional hardship for one or both parties and the share received by the claimant can be significantly reduced by the courts if there is a prolonged delay.

There is often a reluctance to be fully open about finances but if anything is left hidden it risks being disclosed at a later date when its value could have increased significantly. It is far better to agree a fair settlement at the time of divorce in the knowledge that future financial claims cannot be issued.

 

 

Andrew Meehan is individually recommended for family law by both Chambers 2015 (York, Hull and surrounds region) and the Legal 500 2016 (Leeds/West Yorkshire and North Yorkshire region).

He is also the only Resolution accredited specialist solicitor in Harrogate for divorce cases involving complex financial and property matters.

 

This article has been prepared with the aim of providing general information only and does not constitute legal advice in relation to any particular situation. While we aim to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. In addition, everyone’s circumstances are different and this article is provided by way of general information only and must not be relied upon. If you require legal advice on a family law issue, please feel free to contact us by emailing enquiries@harrogatefamilylaw.co.uk. Harrogate Family Law accepts no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of any part of our website, except to the extent that such liability cannot be excluded by law.

6 early steps to take when you’re preparing for divorce

When you are preparing for divorce the things you do in the first few weeks can have quite an impact on the financial outcome. That’s why it’s important to take advice before you make any decisions that could affect your long term position.