Clients who are divorcing often produce pieces of paper which set out an agreement that they have reached directly with their ex. These documents have usually been signed and dated by both the husband and the wife. They are, I am afraid to say, utterly worthless.
I have to advise those clients that, unlike a normal commercial contract, an agreement reached directly between spouses lacks any legal force. This is because in divorce proceedings, the District Judge retains enormous discretion. No deal reached between the parties is binding until an order has been made by the court that reflects that deal. The judge has the power to reject the order (and the deal) if he or she considers that it does not achieve fairness and meet the needs of the parties, and in the particular their children’s needs.
Clients often find this difficult to understand. “How come?” they say “She/he signed the agreement!”
That does not mean that negotiating directly with your spouse is necessarily a waste of time. You may be able to reach an undertaking, but it is essential that you both seek legal advice on the deal and then instruct solicitors to put in place the paperwork necessary to obtain a Court Order. The solicitor will advise you whether or not the deal is in you and your children’s best interests, whether it achieves fairness and meets your needs and whether or not the court will approve it.
In my experience, courts will usually approve deals where both parties are legally represented. However, where one party refuses to use a solicitor, the judge may be less likely to endorse the agreement.
If neither of you are legally represented, there is no hope that you will be able to obtain the order from the court. It is simply too difficult for a layperson to draft.
The worst cases are where the agreement was signed many years ago and one party has realised that perhaps they didn’t get fair share or one party has come into some money and the ex suddenly pops up and makes a claim.
The best way to avoid it is to make sure that you both understand that any direct negotiations must be subject to legal advice and to make sure that you both use solicitors to obtain the order from the court. Anything less should keep you awake at night.