I once had a client who quoted Judge Rinder to me – she had learnt from the TV courtroom reality show that without evidence, it was difficult to decide who was right and who was wrong in any dispute. I was both amazed and impressed that Judge Rinder had such an effect.
He is, of course, correct – and he should know as he is a real barrister, despite his celebrity status and dancing feet.
For there to be a contract (in very simple terms), there has to be an offer made, acceptance of that offer and consideration paid, whether in money or goods. If the consideration is not paid in accordance with the agreement, then either party can sue for breach of contract.
However, this does not apply when a couple divorces. The same process may be undertaken – a negotiation leading to an offer – you take the house and I will have the dogs and the budgie says the husband. The consideration is there, the house, the dogs and the budgie. But if one party seeks to enforce the terms of the order against the other, because they are divorcing it is a requirement that the agreement is drafted into an order that is approved by a Family Judge.
A couple who separate now with a formal, written agreement entered into and a promise for one or the other to commence divorce proceedings once the statutory separation period has passed have no more certainty that the husband with the budgie.
Family law requires that an agreement must be considered by a Judge to be fair and suitable in all the circumstances before it can be approved. The Judge does not simply rubber stamp an agreement reached between the parties. Indeed the courts are encouraged to undertake active case management in all cases to ensure the conditions for making an order are satisfied, even where the parties are agreed.
And equally, any agreement that the separating parties may have reached is not binding as a contract would be – you cannot make a contract about a marriage and you cannot make a contract about its demise.
There are some matters that the court would prefer not to make an order about – the most common one being Child Arrangements (who children live with, what time they spend with the other parent).
There are other matters that the court cannot make an order about – for example it cannot order a mortgage lender to release a party from their mortgage covenants.
There are some matters that the parties do not want the court to make an order about, but are happy to rely on an agreement with a proviso that, if they cannot agree, they can later ask the court to intervene – most commonly this is the division of the contents of the matrimonial home.
There are some matters that cannot take effect without a court order – Pension Sharing Orders are the most common of these.
The structure, language and style of an order by consent can affect the meaning and nuance the outcome if clarification or enforcement is sought at a later date. Drafting a consent order is as important as the agreement it reflects.
Whilst the court have introduced standard wording to reflect the most normal or common agreements, there is a huge potential for varying the wording to accurately reflect an agreement.
So, why would you risk such an important part of the divorce process by submitting a consent order drafted without legal advice? In a recent case, Barton –v- Wright Hassall LLP (memorable if only for the name of the solicitor’s firm involved) the Supreme Court noted that Mr Barton was acting in person, and had missed an important deadline set down by statute. The Court said that whilst he should be treated fairly and equally, Mr Barton should not be given special treatment simply because he is not a lawyer – he should not have lower standards of compliance with the rules or orders of the court.
And so it is with drafting an order. A poorly drafted order can lead to difficulties in subsequent interpretation and enforcement, and an agreement that has not been made into an order is not enforceable at all.
It is for this reason that all separating couples should seek experienced legal advice on any financial arrangements following divorce, even if all you are deciding on is who takes the house - and who gets the budgie.