Obviously, financial arrangements on divorce should be agreed if possible, but what if one party subsequently realises that the terms of an agreement are unfair, before the court makes the agreement into an order?
The answer was demonstrated in a recent case that took place in the High Court in London.
As the judge in the case explained, an agreement between spouses is a contract, and the law insists on contracts being generally upheld.
Accordingly, the starting point is that the court should give effect to an agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
And the most common reason put forward for an agreement being unfair is that it does not meet the needs of the party wishing to challenge the agreement.
That was the wife’s argument in this case (although she did also argue that the agreement should be set aside because the husband had failed to make full disclosure of his finances).
In the case the parties reached an agreement on the 10th of February 2022, which was then recorded in a signed draft court order, and sent to the court to be made into an order. (It is not necessary here to set out the terms of the agreement.)
On the 22nd of February the wife repudiated the agreement, writing to the court asking for a hearing to determine whether the agreement was fair, as she claimed it did not meet her needs.
The court did not immediately make the agreement into a court order, but instead made an order that the agreement was not negated by the husband’s non-disclosure; that it was fair; and that it should be made an order of the court.
The wife appealed to the High Court, claiming (amongst other things) that the court failed to properly assess how her financial needs could be met through the agreement, and failed to take into account her liabilities.
The High Court judge found that the judge in the court below had indeed failed to make findings as to the wife’s financial needs and liabilities, and that without making such findings she could not make a decision as to the fairness of the agreement.
Accordingly, the High Court set aside the order of the court below, and made an order that the wife’s financial remedies claims should be retried.
You can find the full judgment in the case here.
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