In Family Law - When is an Agreement not an Agreement

When advising someone on a Separation I am sometimes presented with paperwork that is allegedly a binding agreement that my client has entered into.

That agreement may be to do with money, children or even contained in the terms of a Will.

If such an agreement has been witnessed or endorsed by a solicitor who states that at the time each party had had independent legal advice and appeared to be aware of the implications of what they were doing then that agreement is going to be very difficult to unravel.

If that agreement has been drawn up privately between parties and there is no suggestion that any independent third party was available to either referee or advise a vulnerable party then it may be that that agreement can be ignored. 

In looking at whether a document was signed as a result of “undue influence” the Law has to look at the how and the why the document came into being and was signed.

This can apply to cohabitation agreements, to prenuptial agreements, to post nuptial agreements and Divorce settlements.

Do not be tempted, therefore, if your partner, in a weak moment, agrees to sign up to the settlement you have been pressing for.  Unless you get your partner independent legal advice or some visible signs of support it could be that document will not be worth the paper it is written on. 

Sometime “undue influence” can relate to very practical matters such as “she will leave me if I do not sign this”. At other times agreement and signature maybe have been obtained as part and parcel of quite complicated negotiations. The intention and fairness will be examined as will the equality of each parties bargaining position.  A dominant person may not be aware that they are overwhelming their partner who has never and dare not stand up to them, or one party may wholly put their trust and all responsibility for running their lives into another person’s hand, but at a later stage allege “undue influence”.

The best advice is, therefore, if you want any agreement to be binding on both parties to ensure that there is some independent third party be it a solicitor or someone else who can confirm no unfair advantage has been taken.  This may open up a real can of worms and wreck the proposed settlement but it is better to renegotiate at that stage and thrash something out that is going to be binding than to have it all over turned and potentially some penalty imposed for allegedly bullying the other party.

When entering into a Consent Order following Divorce relating to the division of the financial assets each party is required to make full and frank disclosure of all their financial resources.  If one party does not do this or misleads the other party as to what the actual financial circumstances are than can result in the whole settlement being set aside, sometimes at a much later date.

Because of this sort or problem, if you are remortgaging your house the banks often require you to seek an independent solicitor to make sure you and your fully understand the implications of the remortgage or further advance.  I certainly have come across cases where I have been asked to verify client’s understanding of what they are signing up to only to discover they have not, for example, appreciated that the bank could apply for a sale of their house in relation to an overdraft of one party or other loans that do not form part of the main mortgage.  The Banks want to be very sure they are not going to have any arguments at a later stage and it is only fair and right that everyone should understand precisely what they are doing.

It was interesting to see in the press recently that a local lady’s Will had been overturned because of alleged “undue influence”.

If these or any other issues relating to family breakdown are problems for you please contact us on 01423 858582 or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

 
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