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A seperation agreement...can it be challenged in court?

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  • A seperation agreement...can it be challenged in court?

    Hi, this is my first post, so any help/advice would be greatly appreciated, please bear with me...I hope not to drag this out into too long an OP.

    My wife and I separated in December 2017, at first it was a trial separation, but eventually became a full split, and we obviously decided to sell our home.

    My wife suggested we get a Separation agreement drawn up, I didn't really feel we needed one, we hadn't fallen out, we weren't bitter towards each other, it was all quite civil. We just grew apart as a couple, we don't hate each other. It was in March that she first mentioned a separation agreement. More than anything else, it was to register the share of the house sale profits. Her dad had given us £10k towards the deposit of our previous house, and I agreed it was only fair that she get that back, rather than splitting it.

    So...our house went on the market for offers over £325k, and with what was left on the mortgage to pay off, that would leave me with around £25k, and my wife with £35k, after legal fees and other costs were factored in. My wife suggested that on the separation agreement, that was how it would be written, and was. I was to receive £25k, the rest transferred to my wife, who would split up the remainder of the profits. Perhaps I shouldn't have been so naive about this - but I genuinely thought we were in a good enough place that it'd be fine.

    The house sold for £352k, so a lot more than we'd hoped to get.


    I've gone back to check through my messages on my phone, as that's how most of our communication has taken place -

    Before I signed the agreement I have these messages -

    26.03.18 (WIFE) - "Hey, just to keep you updated - I have a solicitors appointment next Wednesday. You don't actually need a solicitor unless you want one - it can just be signed by you"

    12.04.18 (WIFE) - "going to get the separation agreement drawn up, with a lump sum £25k to you first. Obviously you will get more, but wanted to check you were still happy with it being drawn up like that for simplicity"

    16.04.18 (WIFE) - "I have a telephone appointment with my solicitor tomorrow - just checking (again) that you are happy with the agreement drawn up with £25K to you, then rest to me. Then obviously once I've taken my share I'll divide the rest as discussed before."

    16.04.18 (ME) - Yeah, like I’ve said already I trust that if we get much more than the £325k (which if it’s been valued at £340k, we have to assume it will) you’d not **** me over and keep the rest.

    16.04.18 (WIFE) - "I wouldn't **** you over - obviously I would take £35K (my £25K plus £10K from my folks), plus share of mortgage payments and bills from January (which are around £800/month) and solicitors fees for separation agreement (£800 - as I have had to pay this from my own money). The rest I would then split 50:50.
    The more we can sell the house for, the better, as we'll both benefit!"

    16.04.18 (ME) - Yeah, I know that's how it will be, that's totally fair.


    Fast forward to this morning - I sent her a spreadsheet I'd put together with the figures and asked if that looked about right, for how much I'd be getting (by my figures it should be £34.7k), I received this response -

    26.06.18 (WIFE) - "On reflection I have made the decision that I will be following my solicitors advice to stick to the terms of our legal separation agreement x"


    Obviously I've called her today - bottom line seems to be...she knows I've started seeing someone else (it's not even a relationship...I've just been out with her a few times), and isn't happy about it...and as far as she is concerned, I signed the agreement, so it's up to her, and there's nothing I can do about it.

    Is she right? Having signed the agreement, am I now screwed, with no legal challenge available?
    Tags: None

  • #2
    Hi and welcome

    Did your signed agreement include a clause such as "This Agreement may not be amended, except by the mutual written agreement of the Parties.?
    The general principle of English law is that the parties have freedom to agree whatever terms they choose to undertake and can do so in a document, by word of mouth, or by conduct.

    So I would suggest in the absence of such a clause, your messages are a clear intention to vary that agreement and so she is being a trifle devious.

    If none of our legal peeps comment you might be well advised to obtain professional face to face advice

    Comment


    • #3
      The terms of that agreement are going to be what determines your position.

      As you mention "offers over" in your post I think you might be in Scotland, is that correct?
      COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

      My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

      Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

      Comment


      • #4
        Originally posted by des8 View Post
        Hi and welcome

        Did your signed agreement include a clause such as "This Agreement may not be amended, except by the mutual written agreement of the Parties.?
        The general principle of English law is that the parties have freedom to agree whatever terms they choose to undertake and can do so in a document, by word of mouth, or by conduct.

        So I would suggest in the absence of such a clause, your messages are a clear intention to vary that agreement and so she is being a trifle devious.

        If none of our legal peeps comment you might be well advised to obtain professional face to face advice
        I'll have a look at the agreement tonight, but fortunately enough I went to speak to my wife last night...she's now agreeing that we should split the money as discussed. I'm glad, but obviously, she's told me that before, and changed her mind. So I'm not expecting to hold her to her word, hopefully though.

        Comment


        • #5
          Originally posted by jaguarsuk View Post
          The terms of that agreement are going to be what determines your position.

          As you mention "offers over" in your post I think you might be in Scotland, is that correct?
          Yeah, we're in Edinburgh.

          Comment


          • #6
            Originally posted by easty View Post

            Yeah, we're in Edinburgh.
            Okay, the terms of the agreement are what is most relevant at this stage.

            I asked your location as Scottish legal procedure is completely different to that of England and Wales.
            COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

            My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

            Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

            Comment


            • #7
              Tagging ScottishSolicitor who might have a view on this matter

              Comment


              • #8
                Originally posted by des8 View Post
                Tagging ScottishSolicitor who might have a view on this matter
                This is really a question for a family lawyer I think which is not my area Im afraid

                Comment


                • #9
                  Originally posted by easty View Post

                  I'll have a look at the agreement tonight, but fortunately enough I went to speak to my wife last night...she's now agreeing that we should split the money as discussed. I'm glad, but obviously, she's told me that before, and changed her mind. So I'm not expecting to hold her to her word, hopefully though.
                  Thank you for the update.
                  Trust it works out, good luck

                  Comment


                  • #10
                    Originally posted by easty View Post

                    I'll have a look at the agreement tonight, but fortunately enough I went to speak to my wife last night...she's now agreeing that we should split the money as discussed. I'm glad, but obviously, she's told me that before, and changed her mind. So I'm not expecting to hold her to her word, hopefully though.
                    Get it written down as then she can't go back on it. If she truly means what she says she'll have no problem formalising it. It doesn't have to be done by a solicitor, you reference the previous agreement and make this an amendment to it to make clear how the money will be divided.
                    COMPLETING AN N180 DIRECTIONS QUESTIONNAIRE (SMALL CLAIMS TRACK) GUIDE

                    My posts here are based on my experience of a variety of life events. I have no formal legal training & if in doubt take professional legal advice or contact CAB. If you follow anything I write here you do so at your own risk & I accept no liability for any loss, costs or other outcomes.

                    Private messages are disabled as help is only offered publicly. I do not come on here in the evening, at weekends or on public holidays.

                    Comment


                    • #11
                      Hi Easty, this question is truthfully for a family lawyer. No agreement made between two people is binding without a court seal on it, it can be challenged and you can change your mind at any time. it is as easy as that. The solicitor who is drafting the agreement must recommend that you obtain legal advice about the agreement. This is one of the requirements from the court. If you are not advised to seek legal advice, and for example, the agreement is drafted into a consent order and sent to court for approval, the courts normally refuse to approve and seal it, unless they can demonstrate that you were advised to seek legal advice and you either didn't obtain one or you did. Also, you were not under undue influence to sign the agreement.

                      normally parties to a dispute do not want to challenge agreement just to avoid the hassle of escalating fees and stress. Just talk to her if this has not been settled, that you know your rights and would like to share equally the remaining profits, hopefully, she will understand. Keep us updated and good luck





                      "Although I am a family lawyer,, any advice given on this forum should be taken as guidance only and should not be applied to your specific circumstances. If you are uncertain as to your legal rights, I recommend that you seek independent legal advice from a lawyer local to you". Good luck
                      Although I am a family lawyer, any advice given on this forum should be taken as guidance only and should not be applied to your specific circumstances. If you are uncertain as to your legal rights, I recommend that you seek independent legal advice from a lawyer local to you. Do not forget to update us on your case. Good luck

                      I work in Coventry on Mondays and Thursdays and Stevenage on Tuesdays, Wednesdays and Fridays.

                      Comment

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