Many people who are divorcing, dissolving civil partnerships or separating from their spouse or civil partner will reach an agreement direct with their ex about financial issues. This may have the advantage of being much faster and less expensive than using a solicitor to negotiate an agreement.
There are also some areas where it is a good idea for people to do a deal direct with their ex; e.g. in relation to issues such as to how to divide the contents of their home or about arrangements for pets where the cost of resolving those disputes would be disproportionate and where the court is likely to have little sympathy or time to deal with them.
However, there are many potential disadvantages too.
(Note: for the sake of simplicity, when I use the words “marriage” and “divorce”, this includes civil partnerships and dissolutions, which are effectively the same thing).
An agreement is not enough
A mere verbal or written agreement is not enough. If a couple are divorcing, any financial agreement needs to be incorporated into a financial consent order which is approved and made by the Family Court. If there is no order, then the agreement may not be binding, it cannot enforced, any pension sharing cannot be implemented and as there is no kind of clean break order in place, both parties are exposed to the risk of further financial claims by their ex in the future.
Many people do their own divorce applications and manage to negotiate their own deals without using a solicitor, but very few of them appreciate that they also need to get a financial consent order from the court. Among those that do realise the need for this, some try to draft their own orders and supporting D81 statements, but are simply not up to the task. The financial order is a complex bespoke legal document that few non-lawyers could draft. The D81 statement is also nowhere near as straightforward as it looks.
I have encountered a small number of people who dismiss the need to use a solicitor to draft the financial order. They think that it is easy, especially now that there are standard precedents used by lawyers to draft orders. However, believing that because you have access to the precedents means that you can draft an order is a bit like me being given a roll of cloth, scissors and a needle and thread, and thinking that I can cut and stitch together a suit. I could probably have a go at it, but it would look awful, and fall to pieces the first time that I wore it. There is more to drafting an order than just deleting the irrelevant parts of the precedents, filling in the blanks and finding, hey presto, you have a workable, effective and enforceable order.
It is claimed that Michelangelo said that statues exist insider a block of marble and that all he had to do was to chip away the bits of marble that were not needed. It is tempting to regards the drafting of an order using the standard precedents as being similar. However, you don’t just delete the irrelevant parts of the precedents to expose the order. For a start, Michelangelo was an artistic genius.
Furthermore, it often necessary to amend the standard precedents to make them reflect the terms of the deal. Consideration has to be given as to whether the terms are workable and enforceable. Some clauses need to be drafted from scratch, if they are unusual in nature (and agreements reached direct between parties often contain unusual terms). And of course, you need to be confident that you have not deleted something that you need, just as Michelangelo knew which bit of marble to chip away. That is why you need a legally qualified, experienced and trained solicitor to do it for you.
People sometimes ask me to review their draft documents and to make amendments if necessary. I generally advise them that it would be faster and expensive if I drafted the documents from scratch.
The need for legal advice
It is absolutely essential that people seek legal advice in relation to any proposed agreement. The solicitor will need at the very least to be given a clear summary of the parties’ current finances. He or she should then be able to advise whether the client should commit to the proposed agreement.
An agreement cannot be enforced with a court order and a lack of legal advice in relation to a deal makes it very hard to get the order in the first place. The court may not be prepared to make a financial order in a divorce if it considers that the terms do not achieve fairness or meet the parties’ or their children’s needs. It will particularly not do so where it is not satisfied that the parties have had legal advice.
A classic mistake that people make time and again is to simply divide everything equally because they assume that is fair. It may be fair, but it nevertheless it may not meet their needs. If 50% of the assets does not rehouse them or their children, it is probably not appropriate. An equal split of the assets is the starting point, not necessarily the end result. The court will decide whether it should divert from equality in order to achieve fairness and to meet needs. This often results in one party receiving more of the assets than the other, depending upon the circumstances of the case.
An equal split of the pensions is often not appropriate. Women tend to live longer than men, and often therefore need more pension than men to meet their future needs. Splitting the capital values of the pensions equally may not result in the pensions paying the couple equal incomes in retirement.
Separating couples who are not divorcing yet should instruct solicitors to draft a separation agreement. If a divorce later takes place, the court can refuse to make an order reflecting the agreement if it is not satisfied that the agreement is appropriate. One of the reasons why it might do so, is where the agreement may have been concluded without the benefit of legal advice.
There is often also a need for specialist pension advice from a Pensions On Divorce Expert (PODE). Few non-lawyers appreciate the need for this.
The need for clarity
Self-drafted agreements can often be very unclear as to what has actually been agreed. They can be filled with pseudo-legalistic terminology which the lawyers may struggle to understand, because it is legally incorrect; plain English is generally much better than being overly formal or legalistic (particularly if the person drafting is not actually legally qualified).
Agreements drafted by amateurs can often not mean what the parties intend. One example would be an agreement that the parties will share their legal costs equally. But what does that mean? Does it mean that each party will pay their own legal fees, if any? Often that is what people mean, but those fees are not likely to be the same. One party will inevitably pay more than the other, probably because their solicitor will have done more work. Or does it mean that they will literally pay half each? If so, how? Will one party make a balancing payment to the other party if their fees were higher?
Another common issue is where something has been overlooked. Often I see self-drafted agreements that overlook jointly held assets, or which overlook the possibility of a capital gains tax bill because assets are being liquidated to fund a deal.
I have had a number of cases were a client tells me that they have reached an agreement with their ex and they then hand me a copy of the “agreement”. The trouble is that the document is not an agreement, it is a couple of spreadsheets showing what the parties have now and what they will have following implementation of deal. This is not an agreement; it does not actually tell me how the agreement will be implemented. How do we get from one spreadsheet to the other? What assets will be transferred? How will they be transferred? If there are pensions, will the transfer be by pension sharing order? Or by a lump sum payment instead of pensions sharing? Will that meet their needs?
The need for workability
I have encountered more than a few cases where the deal will simply not work. The parties have agreed something that cannot be done.
Another problem is unforeseen consequences; e.g. the sale of the house which should not be sold as it should be transferred to the wife so that she can house herself and the children, and where her share of the proceeds will not be enough to rehouse her, but it will be enough to ensure that she no longer qualifies for universal credit.
Excessive complexity
Many of the self-drafted agreements that I have seen are incredibly complicated. There are all sorts of provisions, perhaps designed to achieve a particular outcome. The outcome that most self-negotiated direct agreements aim to achieve is an equal split of the assets. To do this, people sometimes craft an incredibly complicated deal with huge numbers of provisions. Not all of them can be the subject of an order, as the court may not have the power to order them, and they instead are recorded in the recital to the order as an agreement; these bits of the deal may not be enforceable.
Another mistake that is often made is to recognise the need for pension sharing, but to then say that the parties will split every pension. I recall seeing a proposed deal where there were to be half a dozen pension sharing orders, one in relation to each pension owned by either party. I had to explain that it would be more sensible to just have pension sharing orders for one or two of the larger funds, and for the other pensions to remain untouched. This would give them the same division of pension capital without the need to pay six sets of pension sharing charges (whether an equal division of pension capital meets needs is however another problem).
Lack of supporting evidence
Direct agreements rarely involve the parties providing each other with documentary evidence the value of their assets. A great deal is therefore taken on trust. A solicitor will point this out and will say that is important that both sides are confident that they have a clear understating of each other’s finances.
One piece of information that is often missing is a cash equivalent transfer value (CETV) or cash equivalent value (CEV) for pensions. Often people assume that if they have agreed that there will be no pension sharing, then there is no need to provide the CETV/CEV. Quite aside from that meaning that the agreement has been reached without a full appreciation of each other’s finances, if the parties seek a financial order, they must tell the court what the pension CETV and CEV is, regardless whether the court is being asked to make a pension sharing order. The court has to take the pension figures into account. It is therefore essential that this is requested preferably as soon as possible as some pension providers can take months to do them.
Vagueness
Self-drafted agreements can often be very vague. There may be a level of informality about the agreement, perhaps because the agreement is difficult for the parties to put into words, or perhaps because there is not really any kind of agreement on that point.
Lawyers do not like vagueness. An imprecisely drafted financial order is likely to be an unenforceable financial order.
I suspect that much of the above might be regarded by some people as me being a typical layer and making things more complicated than they need to be. The reality is that it is already complicated – people just don’t realise how complicated it is. A lawyer’s job is help the parties find their way through complications and to come up with an agreement that achieve fairness, meets the parties’ needs, is workable and enforceable.
10 May 2026
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