You and your former partner have talked and negotiated, and you’ve managed to come to an agreement regarding your parenting and/or property matters. Things are going well, and you’re feeling thankful that your divorce hasn’t turned out the same way as some of the nasty divorces we all see on TV or hear about from our friends and family.
It’s going so well, in fact, that you might think you don’t need to document the agreement. You trust each other to stick to it – shouldn’t that be enough? Maybe you even wrote the agreement down informally and both signed it – that’s binding isn’t it?
If I was not a family lawyer, I would probably say those situations are fine and that it would be a waste of time and money, or that it may antagonise what is otherwise an amicable situation, if you involve a lawyer. But, I am a lawyer, and if a client asked me those questions, alarm bells would ring and I would have to say that unfortunately a verbal agreement or an informal written agreement both leave you open to various risks.
Far too many times, I have had a client come to me because they made an informal agreement with their former partner, often months or years ago, which was never documented and the former partner has now reneged on the agreement. The person my client trusted at the time the agreement was made is not the person they are dealing with now.
Often this is a result of circumstances changing – perhaps they’ve lost their job, or they’ve since re-partnered. Whatever it is, they have decided the agreement was not right or not good enough and they want something else, or often something more. Many of these clients admit having said at some point in time “that won’t be me” or “that won’t ever happen to us” or “they would never do that to me”. They truly believed it when they said it, and yet, it has happened, despite the best of intentions.
The risks of an informal written agreement
Sometimes clients show me a handwritten or typed agreement that was signed by both parties, but unfortunately the agreement they show me is not a recognised method of documenting their family law matter. The agreement may be used as evidence, but it is not a binding or enforceable document. Even if you have given effect to the agreement you reached, the Court might still interfere, particularly if the agreement is not deemed fair and equitable as required by the law.
Some clients also hold fast to the time limitations imposed on things such as property matters. Often someone has told them that 12 months after being divorced the other party cannot make a claim, so there is no need to make a formal agreement – they just have to wait the 12 months and after that a claim cannot be made by either party. That is not entirely true. The other party can make a claim, they just have the extra hurdle of getting the leave of the Court to do so. Many people have been successful in doing this even years after a divorce.
What you should do when you reach a verbal agreement
If you manage to reach a verbal agreement with your former partner without any mediation or legal intervention – well done! That’s not an easy task for many people, so you and your ex should be proud of yourselves. But don’t rest on your laurels. The bottom line is, when you’re making the decision as to whether or not it’s necessary in your situation to document the agreement you have reached, you should always obtain advice so you can weigh up the risks of the choices available to you.
If you’d like advice on the agreement you have reached with your partner, I offer an initial consultation free of charge for up to one hour, contact me at [email protected] to book a time.
For other Family Law FAQ’s, click here.