A frequent question I am often asked from separating couples is :- If we have an agreement why can’t we just put it in writing and get a once over from a solicitor and sign it and let that be it. I wish to explain why solicitors can seem to make very simple things very difficult, expensive and time consuming.
The answer is …The Lawyers first rule of fight club. This is that when people enter any agreement the last thing they imagine when they enter it is that the other person will break the agreement. The first thing the solicitor thinks about is what will happen when one person breaks the agreement. I think that we solicitors probably don’t put this out there front and centre because once you have worked in the legal industry for any length of time, it seems so obvious. We are trained to try to see into the future and imagine all the things that can go wrong. We then think into the future of our client coming to our office with this future problem and imagine what practical solution do we have for our client.
So a case in point, a separation agreement sound great and in certain circumstances can be ideal. But mostly just think about it, Mary and John relationship ends and they have two children. Everything is amicable so it is accepted by John that he move out and rent a place with room for the children to stay 3 nights per week. They agree maintenance at a certain amount bearing in mind John now has to pay very high rent. Mary accepts that because they now are in a new reality and that both their standards of living will have to be reduced as they will now have to support two homes. They both enter the agreement. After 1 year Mary meets a new partner who the children love and John decides to stop paying maintenance. What is Mary to do? She goes to her solicitor and is advised that a separation agreement is just like any other agreement and that the court process required is expensive and lengthy as it is essentially the same expense as enforcing a big time commercial agreement. Mary cannot afford this proceedings so leaves it and her relationship with John deteriorates further.
Her solicitor advises her that this is the unfortunate reality and that perhaps if she had her time back, they could have spent a small bit more money and have made their agreement an order of court. This would have required both to engage a solicitor , start a process and go to court. If this had been done, Mary would have been able to simply ask her solicitor to list the case in court. John would have been required to attend and explain his rationale for not obeying a court order that he had voluntarily and with legal advice agreed to. Equally John’s argument could be accepted by the judge and the maintenance may be reduced.
So remember the next time you ask your solicitor “we have agreed everything, why cant we just sign something” think like Mystic Meg, look into the future and think of the first rule of fight club.
