Can I sort out finances with my ex-spouse without going to court?

10 June 2013

Worthingtons Solicitors advise on alternatives to court proceedings when it comes to negotiating a financial settlement with your ex-spouse.

Following the breakdown of a marriage it is possible to negotiate a financial settlement by way of a Matrimonial Agreement.   This involves both sides attempting to reach a resolution without the requirement for Court proceedings.  A Matrimonial Agreement can be used to reach a full and final Agreement in respect of the matrimonial home, spousal maintenance, any assets or liabilities that are held by either or both parties, and any other residual financial matters.

Both parties should instruct their own solicitor to provide them with separate and independent legal advice and full discovery is required to be exchanged by both parties in order to create a clear financial picture to allow an offer of settlement to be made.  Negotiations should be conducted in a forthright way to enable a mutually acceptable resolution to be met.  Proceeding on this basis can often negate the need to issue lengthy and expensive Court proceedings and may lead to a speedier and more amicable resolution for both parties.

Once an agreement has been reached, it is compiled into a formal document which is signed by both parties and witnessed by their respective solicitors.  In most instances, neither party will thereafter be able to make a claim against property or assets in the other party’s name, unless the agreement allows for this to happen.

The agreement becomes enforceable by the court once it has been made a Rule of Court, an application which would be made at any future divorce hearing.  

In certain circumstances, a Matrimonial Agreement can be set aside or overruled by the Court. For example, if the Court is convinced that one of the parties was not of sound mind at the date of signing the agreement, or if one of the parties had failed to disclose assets, then the agreement is unlikely to stand if challenged.

Legal Aid is not available to negotiate a Matrimonial Agreement without the commencement of proceedings, and since the negotiations are not in the Court arena, neither party can be compelled to co-operate with the process. If an agreement is unable to be reached, an alternative avenue to resolve the matrimonial finances is by way of Ancillary Relief, although this can only be commenced after the initiation of Divorce proceedings.

It is important that you seek legal advice if you and your ex-spouse wish to address financial matters by way of a Matrimonial Agreement.   Elaine Keenan is a Solicitor with the Matrimonial department of Worthingtons Solicitors.  Should you have any queries in relation to this article please submit your enquiry in the form below and a member of our Family Law team will be happy to contact you.

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