Posted on 22nd April 2015

Getting divorced can be a stressful experience.  It is essential to most parties that the process is as pain free and inexpensive as possible.

For those going through a reasonably amicable and uncomplicated divorce with a high level of agreement about their finances, using online resources and self-representation is a route to consider.  However, as the case below demonstrates, sometimes even educated individuals wishing to take control over their legal affairs can fall foul of the legal and procedural maze and end up spending much more than they bargained for.

Case of D v D in April 2015:

The parties were married for 6 years.  They separated in January 2012 and decree absolute was pronounced later that year.  The parties reached an agreement regarding their financial arrangements without any legal assistance.  The wife drafted an order using a template from the internet and both parties signed the draft order.  This consent order was approved by the court in September 2014.

The wife included an undertaking (a solemn promise) in the order requiring the husband to “pay to the wife £400.00 on the 1st of each month by standing order towards the mortgage secured upon the property A in favour of Mortgage Company B until the final payment is made on 1st October 2018.”

Property A was sold and mortgage B redeemed by the wife in June 2014.  In September 2014, the husband became aware of this and immediately ceased making payments of £400 per month on the basis that his obligation had come to an end.

The wife immediately wrote to the husband demanding payment.  Her view was that, despite the sale of property A and redemption of the mortgage B, payments should be made by the husband until 1 October 2018. She argued that at the time of preparing the consent order there was a business debt owed to her by the husband and that it had been agreed that payments to her by the husband of £400 per month until October 2018 would cancel out the debt.  However, this was not recorded in the order.  She further argued that the £400 payments were never intended to relate to property A or mortgage company B in particular but could relate to any future property purchased or mortgage secured by her.  She issued an application to the court for enforcement of the undertaking.

The husband disputed any agreement about a debt and sought legal advice immediately.  As a result of legal advice, he cross-applied for discharge of the undertakings and repayment of the overpayments he had after the mortgage had been redeemed.  He argued that the purpose of the undertaking was unequivocally clear from the wording and that his obligation was contingent upon the existence of property A and mortgage B which had been sold and redeemed respectively.   There was no agreement or provision that the payments should apply to any future property or mortgage.  Also that the date of 1 October 2018 was nothing more than confirmation of the final payment date if the existing mortgage had run its course.

He argued that litigants are not ordered to give undertakings, they choose to give them.  Any question of understanding and interpretation lies with the person giving the undertaking to the court.  The husband was adamant that the purpose of the payments was to assist the wife to meet the mortgage payments with mortgage company B, and not to repay a debt.

The wife had the responsibility at the time to ensure that the terms of the order reflected what had been agreed between the parties.  It was her error that it did not reflect what she had intended.  She filed a statement saying that as educated individuals the parties had not sought legal advice believing that they could agree and draft the order themselves.

At the first court hearing the judge considered the wording of the undertaking and urged the wife to seek legal advice.  He warned her about the costs consequences of pursuing the application which may fail.  However, the wife chose not to take any legal advice.

At the final hearing the judge considered the wording of the undertaking and the parties’ statements.  He found that they had made a deliberate choice not to take legal advice in respect of the consent order and bore any risk arising from the drafting themselves.  In his view the construction of the undertaking was quite simple and he favoured the husband’s position.  He discharged the undertaking and ordered the wife to repay the overpayments made by the husband.  A costs order was made for the wife to meet the husband’s legal fees.

Had the parties sought independent legal advice in the first instance then, from the wife’s point of view, the order would have been carefully drafted to reflect what she thought had been agreed.   Her error in drafting cost her thousands of pounds.  From the husband’s perspective he would have saved himself the anxiety and uncertainty of having to defend his position in court.

Article written by Victoria Clifford, Family Barrister at No5 Chambers.

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