Undoubtedly divorce can be a traumatic and emotionally draining time for all concerned. As a result, we often experience clients going through the process who are keen to have the whole matter concluded as quickly as possible.
Whilst such feelings are natural, we have to ensure that our clients receive the best possible outcome and do not potentially walk away from a higher divorce settlement than they are entitled to.
We have realised that many clients don’t fully appreciate that they only get one chance to achieve a fair and reasonable divorce settlement. Generally, there is no scope for them to come back once the dust has settled and seek to vary the original divorce settlement.
In Scotland, the majority of divorce cases are settled amicably, with neither person having to step foot inside a court room. Normally this is done by the two parties negotiating a settlement through their solicitors and having a Separation Agreement (or Minute of Agreement) prepared to reflect that, which is signed by both and represents a legal contract between them.
Once a Separation Agreement has been signed, there is very little that either can do to overturn that or change the terms of that at a later date, unless they are both in agreement with any proposed change. The court will very rarely interfere with the terms of such an agreement.
Fair and reasonable settlement
Care must be taken to ensure that each person is happy that the agreement is a fair and reasonable one before they sign. A common example we encounter is where one person has a substantial pension fund and the other does not. Often the person without the pension will choose not to claim on that, despite being legally entitle to, in order to keep the separation amicable and avoid “rocking the boat” with their spouse. However, their opinion might change months down the line, perhaps as a result of frictions arising in relation to the care arrangements for their children or perhaps at the news that their ex has moved on and has met someone else. There can be lots of different triggers which cause a person to reconsider their earlier agreement.
Setting aside/varying a separation agreement
Whilst there is some provision for a party to apply to the Court to seek to have an agreement set aside or varied by the Court, the Court will only entertain such an application in very limited circumstances. Generally, a person would need to show that the agreement was either not fair or not reasonable at the time it was entered into. Examples include where one person was not legally represented and was put under force or duress by the other to sign the agreement, then that may be a ground to have it set aside. If a person’s judgement was impaired due to mental health, stress or poor health at the time the agreement is signed or if one person failed to disclose an item of matrimonial property, then that may allow the other to apply to the court to have it varied/set aside.
However, where a person has been afforded the opportunity to obtain independent legal advice but has either chosen not to obtain such advice (perhaps in an effort to save money) or, alternatively, has chosen not to follow the advice they were given, it will be virtually impossible for the court to set aside or vary that agreement at a later date.
Clients who are not inclined to follow their solicitor’s advice should not be surprised if their solicitor requests that they sign a disclaimer letter, to be retained on file, confirming that they understand and accept that they are choosing not to follow that advice.
Procedure after Decree of Divorce is granted
Once a separation agreement is in place, normally one person will then apply to the court for a divorce, which will not usually be contested by that stage. Unfortunately, not all cases are resolved by agreement and some people require to apply to the court for orders for financial provision as part of their divorce. With both options, the end result is the same and the court will ultimately grant decree of divorce. Generally, once Decree of Divorce has been granted and the formal document (known as an Extract Decree of Divorce in Scotland) has been issued, the divorce cannot be overturned. It is therefore imperative that the financial matters are resolved before applying for a divorce. If a divorce is rushed through prior to the financial matters being resolved then there is virtually no way for a person to claim financial provision through the court at a later date.
It is therefore crucial, in an effort to avoid potentially costly and convoluted procedure at a later date, that the parties are sure that the terms of their Separation Agreement are fair and reasonable at the time they enter into that. Whilst it may be tempting to rush matters to try and come up with a swift resolution, that might not prove to be in the parties’ best interests in the long run and that should be borne in mind when instructing a solicitor.