‘I am nervous about seeing a lawyer because we are very amicable and we are all agreed. We don’t want the lawyers to push us into doing something else’
This is a comment I hear regularly from potential clients making enquiries about an appointment with us. I always assure those people that our job is not to scupper their agreement. Your lawyer is there to provide advice and then once you have had time to consider that advice, the lawyer then proceeds with your instructions.
It will sometimes happen that the agreement reached cannot be implemented because of the details of what has been agreed, or there may be a risk that the court won’t approve a court order reflecting what the parties have agreed. It is important that you have this information so that the agreement can potentially be changed before wasting time and money on drafting and submitting a court order that is likely to be rejected. Therefore, whilst we don’t want to cause problems with the agreement, we would not be doing our job properly if there were issues with it and we didn’t point them out. However, even in those circumstances your lawyer should be discussing with you how they can be resolved and aim to maintain that amicable relationship you have with your ex-partner, this is even more important where you have children together. For example, we would encourage further discussions between you if a problem does arise so that you can try and resolve the issue directly rather than entering solicitors’ correspondence straight away.
There are some common problems that arise with agreements made. For example, people often don’t want to get a divorce. However, if you have agreed a pension sharing order, it legally cannot be implemented until there is a divorce. Another example is if you want to have a separation agreement, both parties should have solicitors advising them on the agreement, whereas on submitting a consent order to the court this is not a compulsory requirement. This is sometimes an important consideration for those wanting to keep their costs down.
Sometimes the parties reach an agreement that is unlikely to be approved by the court. The court does not rubber stamp orders. They will consider the content of the order and the submitted statement of information form (SOI). The SOI form gives a brief summary of the parties’ financial positions. If on considering those documents the court declines to make the order they will often ask for more information, or suggest that the party who has not received legal advice go and do so. These are the types of subjects that your solicitor at your initial appointment, even on agreed matters should be considering and discussing with you. However, whilst we may have to point out problems with the agreement, we would also provide you with potential solutions, considering all options available.
Also, regardless of how amicable your relationship is, you should always seek to have the agreement formalised to ensure it is protected. Sometimes circumstances change and can mean that people change their minds about a previous agreement reached. If it is not in a separation agreement or consent order this could cause problems, even years after divorce/separation.
The Family team at Ellisons are committed to providing our clients with full and frank advice, explaining all of the options available and working in a positive, amicable and proactive way wherever possible. If you do reach an agreement with your ex-partner you should both be congratulated. It is not easy. It is still important to get legal advice, as protecting the agreement through either a separation agreement or consent order is vital, and is certainly easier to achieve where you are on good terms.
Ellisons provide a wide range of Family Law services to guide you through disputes in a sensitive but effective way to ensure the most appropriate outcome. Get in touch for further information or support.