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12/06/2017 By: Eleanor Lowes
Until the court makes a consent order, the financial agreement between divorcing spouses is not legally binding. It is not uncommon for one spouse to agree to a financial settlement, only then to have a change of heart a few days, weeks or even months later. If you find yourself in this situation, all is not lost - it can be very difficult for your ex to go back on an agreement but it may involve having to go to court.
The extent to which your ex-spouse will be held to the terms of an agreement will depend upon a number of factors, including whether you both have had the opportunity to take legal advice and whether the terms of the agreement will meet both of your reasonable needs. The relevant procedural step is to issue a “Notice to Show Cause” application at court, which requires your ex to “show cause” as to why they should not be held to the terms of the settlement you have reached.
The issues for the court are then:
Assuming an agreement has been reached, the court then has to look at whether it should be upheld or enforced. The court looks at various factors, including whether there has been any undue influence or duress which put pressure on one of you to enter into the agreement (if the court finds this, then the agreement will be unfair and not enforced), whether either of you have already acted on or implemented the terms as well as the legal advice you took during the negotiations.
An agreement will have more bite if it has been negotiated through solicitors, as opposed to thrashed out around the kitchen table. However, even if one of you has not taken legal advice on the terms of an agreement reached, that will not necessarily be fatal. All that is really needed is for both of you to fully understand the implications of the agreement. Each spouse having had the opportunity to take legal advice should suffice in the vast majority of cases.
Finally, the court will look at the fairness of the terms reached. In ordinary financial proceedings, the main focus for the court is ensuring that each person’s reasonable needs are met. A court does not require an agreement to result in a 50/50 share of the assets, but it will conduct a “sense check” to ensure that the agreement reached is sensible, and does not leave one of you struggling to meet your needs whilst the other walks away from the relationship with the lion’s share of the assets.
The family team here at Mills & Reeve have lots of experience in dealing with these issues. Give your local office a call for further advice.