One of the most common queries I receive from prospective clients is “how much does a letter cost?” The answer is – it depends.
When I receive this type of enquiry, it is usually from people who want one of two things. They either want a written confirmation of an agreement, usually about financial issues following a divorce, dissolution or separation, or they want me to write a letter to their ex setting out their position and perhaps making proposals.
Unfortunately, many of these enquirers have an unrealistic expectation of what might be involved.
Where they want an agreement between the parties, I have to explain that a mere letter is almost certainly not going to be sufficient. If the couple is dividing or dissolving a civil partnership, they need much more than a letter; they need a financial consent order. Once it is confirmed by both sides that they agree, it is vitally important that the parties then seek a financial consent order from the court. This will incorporate all of the terms of their financial agreement in a very detailed, legally binding format that can be enforced through the court where necessary. If their agreement includes splitting or earmarking a pension, they must seek an order, because it is impossible to implement this without either a pension sharing order or a pension attachment order (the latter type of pension order is rarely seen nowadays).
The order needs to also contain some kind of clean break order, whether that it is a clean break just in relation to capital (which prevents further claims against the parties’ assets) or in relation to income as well (which prevents applications for spousal maintenance) either immediately or in due course when spousal maintenance ceases to be payable. (It is not possible to get a clean break order in relation to child maintenance). It also needs to contain a clean break for the purposes of the Inheritance (Provision for Family and Dependants) Act 1975, which will prevent claims being made against a party’s estate after their death.
A mere letter is just not enough. It’s nowhere near enough.
If the parties are not divorcing, or dissolving a civil partnership and are just separating (whether they are married or not), then they need a formal written agreement.
A married separating couple needs a separation agreement. Such agreements are relatively rare nowadays, especially since the abolition of the old divorce system where a couple could separate for two years and then divorce if they both agreed, or after five years, when the other spouse’s consent was no longer required. The no-fault divorce system introduced in April 2022 has made such agreements quite rare as it removed the lengthy waiting period. Nevertheless, some couples decide not to divorce immediately (or ever) and they need a formal separation agreement recording the financial agreement between them.
Such separation agreements (sometimes referred to as Deeds of Separation or Edgar agreements) are not entirely without risk. If the parties later fall out and try to enforce the order, realistically the only way to do so is by applying to the Family Court for a financial remedy order as part of an application for divorce or dissolution of a civil partnership, or for a decree of judicial separation. (Judicial separation applications are vanishingly rare). The court can decide not to uphold the agreement if it feels that the terms are not appropriate. It is therefore vitally important to seek legal advice in relation to the agreement, as it less likely that the court will refuse to uphold it if it is satisfied that the parties had a full appreciation of the implications of the agreement.
Unmarried couples should also have a formal separation agreement. It is worth noting that section 2 Law of Property (Miscellaneous Provisions) Act 1989 states that any agreement for the sale or transfer of a property must be in writing. That is why when you buy a house in England and Wales, you exchange written contracts in order to form the binding contract to buy the house. The same rule applies to transfers of properties between unmarried cohabitants. If it is not in writing, it will be far harder to enforce the agreement.
It is also worth noting that unlike a separation agreement between a married couple, a separation agreement between an unmarried couple is likely to be legally binding. Therefore, all the more reason why you should get legal advice on one before you enter into it because you may be stuck with it if you start to have doubts later.
The other sort of letter that prospective clients ask about is a letter to their ex, setting out their position. I sometimes find that enquirers, understandably keen to keep the cost as low as possible, tell me that they have already drafted the letter and just want me to cut and paste it onto my headed notepaper and send it out. They think that the additional authority provided by it coming from a solicitor will be enough to persuade their ex to accept their position.
I have to disabuse these enquirers of this notion. It is not appropriate for a solicitor to simply parrot what his or her clients says. I have to explain to these enquirers that before I send out any correspondence to their ex, they must first have a consultation with me where I will give them legal advice and identify their options with them. If the right way forward is to them send a letter to their ex, I will of course do so, but it is important that they understand that I will draft the letter, not them. They can obviously ask to approve it before it goes to ensure that it accurately reflect the facts and their position, but I do not simply repeat what they have said verbatim. It’s my letter, not theirs.
There are good reasons for this. Solicitors should never simply act as a mail box. They are also trained in how to clear and persuasively put forward their clients’ arguments, often far better than most clients can on their own. They cannot put forward arguments that they know to be untenable or misleading. They will need to ensure that the tone of the correspondence is appropriate; it should never be aggressive or insulting. I often find that people struggle to avoid the temptation to include a little flourish at the end of their draft letters, a verbal “Ta dah! Take that!”, a metaphorical two fingers. However tempting it is to do that, it isn’t appropriate or likely to encourage the other side to agree.
Solicitors who are members of Resolution should abide by its Code of Practice and its guidance on correspondence. Our letters can of course be assertive and firm where necessary, but they must not cross the line into offensiveness, not least because to do so would be both unprofessional and often counterproductive.
I also often explain to my clients that it is important that the letter reads like it comes from me, not from them. If it does not sound like it has been written by a lawyer because it uses the wrong terminology or just sounds amateur, it will diminish its value. If their ex has a solicitor, he or she will read it and immediately think “This is a poor argument, phrased as if it’s been written by someone who is not legally qualified. I suspect that this solicitor’s client may not be listening to their legal advice. Our position must therefore be right!”
Solicitors are not merely mouthpieces for their clients. We represent our clients, as well as advising them. If a client wants us to represent them in an amateurish way, they are not likely to get the result that they want.
4 January 2025
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