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Not me, but asking for a friend..
Basically she broke up with her husband after 20 odd years. Turns out she signed a settlement agreement around a year ago, which was pulled together by her husbands lawyer. She doesn't even know what was in it, didn't get a lawyer to review it, claims she was in a rage, signed it, threw it at him, and left.
Now to me, signing something like that without either understanding it nor consulting a lawyer is beyond belief. But its done now
i dont believe its legally binding, but I assume it would have some influence if things went to court. I haven't seen the separation agreement, she doesn't even have a copy, but I assume she doesn't come out well from it.
What are her options, or has she royally shafted herself?
I had similar agreement with my ex. Amicable split but only I had a lawyer so we could save cash.
The agreement was heavily in my favour as ex came to relationship with nothing and just wanted enough cash to set herself up.
Judge refused to sign off at decree nisi stage I think, summoned us both to ensure that she was happy and not coerced. We were then able to move forward.
So would seek legal advice but definitely not assume that an enraged signature on a document is a fait accompli. Shouldn't something like that be witnessed anyway?
IANAL - but it doesn’t necessarily follow that what she signed is a bad deal for her. I would however be surprised if any lawyer encouraged her spouse to have her sign it without legal advice, because its enforceability will depend on what she understood and its fairness/reasonableness.
in reality to find out how enforceable it is she is going to need to pay even more than for the original advice she didn’t seek.
IANAL but from memory I think it needs the party without a legal advisor to sign a separate document to say they know they haven’t had legal advice and are fine with that. It then has to go before a court, and I think you could then turn up at that hearing and object if you wanted to - in England anyway.
I've only handled settlement agreements in cases of employment rather than divorce, but similar to what Hannah says in my experience a settlement agreement requires the person signing it to take legal advice (and for their legal advisor to sign the document as well), otherwise they're not valid.
They're also a contract, which then requires consideration. So if the ex-husband hasn't paid her anything(?) then that might be a factor as well.
EDIT: also IANAL.
My understanding is that a financial agreement can be signed by both parties, but is not legally binding until a consent order based on it is granted by the courts. So she could get some proper legal advice and seek to renegotiate.
The 'getting some proper legal advice' bit is the priority.
IANAL but my experience suggests a judge will be supportive, if it's not seem to be fair. This was true for am agreement negotiated by lawyers so I'd imagine thats even more so for a random bit of paper that's not witnessed.
Bottom line. Get a solicitor.
Thanks guys. That's encouraging
Still can't believe anyone would sign something like that without a lawyer casting an eye over, let alone not reading it herself!!
But hey ho..
Revisiting this one..
The lawyer has told her since she's signed the agreement it's legally binding ding and she gets nothing under Scottish law
Surely that's not correct? She felt pressurised to sign, didn't realise it was legally binding, or really what the implications were
Surely a judge would see that, after 20 years of marriage, her leaving with nothing is completely unfair.
Is the lawyer talking crap, or has she really screwed herself over?
I ain't no lawyer but that does not sound right to me. Time to play dirty and claim she was coerced into signing?
The lawyer has told her
Whose lawyer is this?
Time to play dirty and claim she was coerced into signing?
Basically he put the agreement in front of her during an argument and told her to sign
So yeah, I think that is coercive
SHe says she can't prove that. But surely any judge would look at the agreement, how she has nothing from it, and come to the conclusion that she was pressured into it.
Whose lawyer is this?
The lawyer she contacted. Not his lawyer. I have told her she need a second opinion as the divorce is due to go through next week
Can she abort or stall on the divorce going through? Appreciate she might not like doing that but it is leverage.
I don't think so as you need some very specific reasons, none apply.
I'm not sure if the financial aspects need to be finalised beforehand however, or can be done afterwards
Can she abort or stall on the divorce going through? Appreciate she might not like doing that but it is leverage.
Any party can do that, but they would have to tell their solicitor to put the brakes on.
The solicitors are acting for the people who pay them, so it's on that person to call a 'time out' to their solicitor if they are being too agressive, or if both parties want to take stock, so to speak.
Revisiting this one..
The lawyer has told her since she’s signed the agreement it’s legally binding ding and she gets nothing under Scottish law
does this lawyer specialise in (contentious) divorce? Are they being paid by her or an insurer etc?
Surely that’s not correct? She felt pressurised to sign, didn’t realise it was legally binding, or really what the implications were
Unless there’s something very odd about it, I think the court will raise an eyebrow at a claim that a presumably mature adult did not understand that signing a document might be legally binding. That doesn’t mean they won’t set it aside; but if every legally binding agreement was ruled invalid because one party thought about it and regretted it - there would really be no point having signed agreements, so really she needs to show that it’s more likely than not that she was duped into signing or at the moment of signing believed she was signing something totally different.
Surely a judge would see that, after 20 years of marriage, her leaving with nothing is completely unfair.
are we talking a simplified divorce here? ie no kids under 16, no mental health issues etc? Those do assume finances are agreed - but are often parties who have been long since separated and this is just a formality, the Sheriff won’t dig particularly deep unless prompted to do so, there’s no hearing etc unless someone objects to the process.
Is the lawyer talking crap, or has she really screwed herself over?
well she’s certainly made her life really complex and probably will run up a hefty legal bill. I’m a bit surprised a lawyer hasn’t discussed the options, perhaps she’s not been honest with him that she was persuaded to sign it in the heat of the moment. Alternatively they’ve seen if and think that the court wouldn’t consider it fundamentally unfair. The court (perhaps only court of session?) can set aside a settlement agreement. I think you will be looking 5 figures just for getting advice how to start with that and lodging the papers never mind actually fighting a case.
I don’t think so as you need some very specific reasons, none apply.
Either party can object, that automatically adds a buggeration factor and extra costs for both sides. A sensible lawyer the otherside would then advise him to sort a solution - but of course he might tell his lawyer she’s a psycho.
however, one of the main valid reasons for objection is that finances are not agreed.
I’m not sure if the financial aspects need to be finalised beforehand however, or can be done afterwards
They should “never” be sorted out after.
she might want to look here:
but I wonder if she’s being 100% straightforward with you? Clearly if she really wants to tackle this she can get legal advice and follow the channels, but you appear to be keener to solve this for her than she is, so perhaps she’s not as angry with the settlement as you believe she should be and just wants to move on, or at least she realises that a year or more of heartache, a huge legal bill and a few pounds left at most might not be worth it. If she really has been coerced then please ignore my last sentence.
Wouldn't such a document without a witness' signature be completely worthless?
I suspect you are not getting the full story from your friend
Are you sure she’s being totally straight with you?
I suspect you are not getting the full story from your friend
Seems I'm not the only person thinking this. We know nothing about the other party and his lawyer, but it would seem like a bold move to get her to sign up to "get nothing" and hope she wouldn't notice
Wouldn't such a document without a witness' signature be completely worthless?
No - not every agreement of this nature needs witnessed to be legally binding.
I think she thought a seperation agreement was just a provisional non legal doc. But who knows. I do know she qas desperate to get away from the bloke so I don't doubt her story
5 figures seems slightly steep to get in front of a judge to dismiss it tbh..
5 figures seems slightly steep to get in front of a judge to dismiss it tbh..
i might be wrong, but i think we are talking KC in the Court of Session stuff here. What seems obvious to you is complex area of law. I’m guessing you’ve never instructed a KC in a legal matter? Just a written opinion on the case will almost certainly be thousands. Of course she could go the court and represent herself - but with all due respect people who unintentionally sign separation agreements in a fit of temper probably aren’t well equipped to do that.
Chat GPT tells me that a judge is likely to overturn a settlement agreement is..
It was signed under duress
It was signed without legal advice
It is clearly not fair on both parties
Given there was no legal advice, and she gets nothing, no share of house, savings or any assets whatsoever I think she definitely ticks two of those boxes
Her claims she felt pressurised into signing something she didn't fully understand are obviously less easy to prove
Full disclosure..I'm in a relationship with this lady, although she signed the seperation agreement before I met her. So yeah I have a vested interest in her not being shafted over and being left with nothing after 20 plus years of marriage
But like anyone reading this, I can't believe she was naive enough to sign something without having it looked over...
Chat GPT tells me that a judge is likely to overturn a settlement agreement is..
It was signed under duress
It was signed without legal advice
It is clearly not fair on both parties
Given there was no legal advice, and she gets nothing, no share of house, savings or any assets whatsoever I think she definitely ticks two of those boxes
Her claims she felt pressurised into signing something she didn't fully understand are obviously less easy to prove
Full disclosure..I'm in a relationship with this lady, although she signed the seperation agreement before I met her. So yeah I have a vested interest in her not being shafted over and being left with nothing after 20 plus years of marriage
But like anyone reading this, I can't believe she was naive enough to sign something without having it looked over...
Chat GPT tells me that a judge is likely to overturn a settlement agreement is..
Lawyers doing contract generation type work are concerned ChatGPT might replace them. Lawyers doing litigation are not so worried! ChatGPT may have the general gist right (I think the link in included earlier is broadly aligned with it), but ChatGPT doesn’t tell you the actual process for having such an agreement set aside in Scotland, and ChatGPT certainly can’t appear on your behalf.
if there was what you consider to be a fair settlement how much £ are we talking? Some people with 20 yrs of marriage are mortgage free, have a huge pension pot and have ISAs and premium bonds maxed out, others have a massive stack of debt and tiny bit of equity in the house. Equally walk away with nothing is probably not right - unless she has no pension of her own (which would be odd if she was working). Potentially keeping all of HER pension and sacrificing other assets is actually not as bad as it seems eg if he had no pension but she had a large final salary one. It all gets complicated if either of them owned significant assets before they met/married or if one inherited assets during the marraige etc, not to mention if there are kids etc involved.
So what does chat gpt say when you put in all the factual information? Or do you not trust a statistical machine that guesses the next part of the sentence based on unfiltered sources and a random throw of the dice…
i dont believe its legally binding
Paperwork from lawyers, signed by wife? You'd have thought she'd need a witness for this?
Signed under duress? How?
Signed without legal advice? Yep. But signed all the same.
Did she not need a witness to her signing it? How many years ago did she sign?
Re duress..ie signed under pressure during an argument. Something else has just come to light..the seperation agreement requires a signature of a witness. Noone was present when she signed it, however the husband got the 'witness' (his pal) to sign it 'after the fact'..
Surely that last fact alone makes it null and void.
Not sure what happened to my previous response..
She signed during an argument, didn't have time to read or understand details
Another important detail has come to light. The seperation agreement requires a witness. There was no witness present. The husband got his pal to sign it 'after the fact'. Surely this point alone makes it null and void?
Re duress..ie signed under pressure during an argument.
there will be a very specific case law tested definition of duress. In criminal cases duress means you were compelled to act due to a threat of violence. I was in an argument may not cut it.
Something else has just come to light..the seperation agreement requires a signature of a witness. Noone was present when she signed it, however the husband got the 'witness' (his pal) to sign it 'after the fact'..
Ok - you are drip feeding us information here. If she does that to a lawyer it’s going to be really expensive.
if it was “witnessed” has it been registered with the Scottish Register of Deeds? There is no need for it to be registered, nor for it to be witnessed but generally registering it removes the ambiguity around which version, or claims that it was edited after signature etc.
Surely that last fact alone makes it null and void.
Depends if he is prepared to perjure himself to protect his friend (or cover his own ass for wrongly witnessing a document - I’m not sure the consequences of that). However the judge will be asking themselves two questions:
- did the person intend to enter into the agreement
- how could a person not think a document that has a space for a witness signature alongside their own signature was an important document that could be legally binding and deserved some thought.
- I would expect that a document like this being witnessed was signed in duplicate? Ie a copy for her and copy for him? Again that’s usually an indication to the signatory that this is more than a letter! Did she sign both and give to him to get witnessed? Did she know at the time who was going to witness it?
if a judge believed that the witnessing irregularity was done with both parties full knowledge for their own convenience, but it’s only afterwards that there is regret then I’m not sure a judge will set it aside. If she was backed into a corner with him shouting at her to just sign the bloody thing and he’ll get out her life for good then that might be different. It would be more credible if she had sought help from police or solicitor soon after the confrontation or had contacted the relgister of Scotland as soon as she received the official record of it being lodged (if it was/she did) to say she didn’t mean it to be binding. I’m not sure “My new boyfriend asked on a mountain bike forum” is going to cut it with the judge that she felt pressured and then tried to get out of it.
What stage are divorce proceeding at? Which procedure is being used? How motivated is he (and indeed she) to get them finalised - eg new marriage on the cards, house moves etc. if he is keen/in a hurry then there may be scope for an “amicable” resolution.
Thanks poly. Can I ask, are you actually a lawyer? If so fair enough, but if what you are saying is true then it seems a hugely unfair situation.
This is someone who has very rashly signed something during a crappy time in her life when she just wanted out the relationship. Coupled with the fact shes a bit of a 'push over' i can well imagine why she signed it, even though i think shes an idiot for doing so. Either way, it precludes her from any share of any assets after 20 years of marriage, and leaves her penniless and without a home. I don't believe any judge would think that's a fair outcome in a divorce
My understanding is the initial divorce papers have come through, and she has until next Wednesday to respond.
In reality, anything 'legal' is challengeable [up to a point obviously] It's just a matter of how much money she's willing to spend to get a result, and a decision about whether its ultimately worth it. As a friend, rather than try to fight her legal battles for her, it sounds like you'd be better off offering emotional support to some-one going through a hard time.
The emotional support is unconditional, however that won't end up paying her bills nor supporting her in old age when she finds she has zero in the way of a pension
As mentioned previously, she claims she thought the seperation agreement meant she had no claim to anything he earned after they separated, not signing away her right to the marital assets. So now she realises the pickle she's in she's even more stressed about things. I'm not trying to fight her legal battles, just ensure she isn't shafted over by her husband (and her own stupid actions)
I am not a lawyer, even if I was I couldn’t provide advice on a bike forum to someone who isn’t the client. Whilst I’m not a lawyer I have dealt with a lot of legal disputes and arguments over time. One thing that’s obvious is that whilst judges may have a view on what is fair, they have an overwhelming respect for the law and so you need to convince them on the law first - you almost certainly need experienced counsel to do so on an issue like this. Everyone who goes to court believes the judge should take their side, that’s half of all people who leave disappointed.
what everyone has said is get legal advice, you say she did that and you don’t like the answer. I do think the answer she’s been given is too simple (which is unusual for a lawyer!). But the things you think are no brainer set aside the agreement points, the otherside will say “she signed it and gave it back to him, she was in a temper that’s not my clients fault, he’s based his financial planning and future in good faith on the agreement she gave him”.
My understanding is the initial divorce papers have come through, and she has until next Wednesday to respond.
Well I can’t see how it does her any harm to object to the divorce on the grounds that the financial arrangements are not settled. She’s not left herself much time, but if she does nothing the divorce will proceed and she will get what is in the agreement. If she raises the issue she will buy some time - it may be the sheriff says, you’ve signed this so unless you want to get it set aside which needs legal advice and expense then I have to proceed or it may be he says “not suitable for simplified procedure” and it forces the ex and his lawyer to have a moment of reflection.
I am assuming here that this is going sheriff court simplified divorce, there are no kids etc. she could call the court who is dealing with it - the admin staff won’t provide legal advice but they are usually remarkably helpful and deal with these cases every day. They will at least make sure she knows how to object properly, and what happens next - like a hearing, needing lawyers etc.
Does she now have a copy of the agreement? It would be stupid to consent to the divorce if she doesn’t. Does it really say she gets nothing? Has a lawyer reviewed it to confirm that’s what it says and that it would be unfair? Eg, I asked about pensions earlier. Lots of people leave a 20 yr marriage with nothing to show for it - that’s only unfair if the other half leaves rolling in cash. Lots of marriages fail because of financial mismanagement if you leave without half the debt it might be a win!
Does he know that she’s not happy? He’ll have made a statement on oath that there are no outstanding financial matters - if there’s a paper trail that shows she made him aware of a dispute before he signed that, and he knowingly made a false statement that might just garner a little attention of the sheriff who is normally expecting to rubber stamp settlements everyones already reached before it lands on his desk.
I hope that helps, I’m not trying to dismiss her issue, I’m trying to make sure you don’t give her false hope that your interpretation of her situation is how a Judge will see it.
Cheers poly
Whilst I'm slightly more optimistic a judge may overrule the financial agreement, you are right a lawyer is needed.
Re the lawyer she contacted. It was by email..and she didn't even mention the fact she hadn't sought legal advice before signing, there were no witnesses etc etc.
Tbh I find it quite frustrating that she has left it this late in the day. Simple stuff like arranging a 15 min chat with lawyer on the phone, that doesn't take 10 days to arrange. Like others have indicated, I'm beginning to think that she hasn't been 100% open with me about the situation. Which would be fine except I suspect there is an expectation that it'll all be OK as I'll pick up the slack, she can live with me at no expense etc etc.
She doesn't seem to grasp that if that doesn't work out between us she'll be on the streets. And if it does it would have a fairly significant financial impact on both of us, both short and long term. For example, up until this point my retirement pot is very much based on one person, not two.
Not directly related but if the friend is relying on a legal aided lawyer to take on a complex case with disputed fact she may struggle to get one.
"A woman who was assaulted by her husband was unable to find a legal aid lawyer to handle her divorce - despite asking more than 116 law firms to take on the case."
https://www.bbc.co.uk/news/articles/cpdx5qjyw25o
OP, if you don't mind me asking, how long have you been seeing this woman for?
Around a year. If she isn't now entitled to anything then so be it. But her lack of any sense of urgency in the matter has riled me right up.
The obvious answer to this, given 3 months ago by numerous posters when I originally posted the question was....'get a lawyer ASAP'
Yet here we are...
Very frustrating..
The good news is Scots family law solicitors will be well used to dealing with people who are a bit chaotic, last minute or have always had a partner who sorted stuff for them. They will also be very attuned to coercion and when people do stuff because they didn't think they had any other choice. Getting legal advice by email is really hard, phone is better, face to face much better as they can see if you understand. Many high street solicitors deal with family law stuff so shouldn't be hard to find someone, but personally I'd want a firm that actually does litigation (most High St solicitors don't go to court). If you are in Edinburgh area Brodies/Lindsays/Thorntons would be worth looking up (that is by no means an exhaustive list). Their fees are probably higher than a small local firm but I've learned that one of the things the other side does is "weigh up" the opposition, so a letter on the right headed paper might actually be quicker/cheaper in the end.
You have a difficult balance to work out between being supportive and appearing to be domineering. I don't envy you, especially if she thinks she's done something really stupid by signing this, as none of us are good at admitting our mistakes. Do you have legal insurance that she would be covered under (or might she through a union etc?). Failing that it must be worth paying a solicitor to look over the divorce paperwork, the agreement if she has it and hear her story and then spell out her options.
Are you sure there's enough there worth fighting for though? Only rich people or stupid people fight on principle - even if "you" win the costs will be significant. Of course you are hoping his solicitor is saying the same to him so a compromise is achieved.
So this saga rumbles on..
A letter was sent to the court contesting the divorce back in Feb. It was recorded and delivered in time. Apparently no response has been received as to whether the divorce has gone through or not
I'd be exceptionally surprised if you didn't even get a response in writing, however I'm also exceptionally surprised that apparently there has been no outcome either way given its been over 6 months
At the moment she apparently doesn't even know if she's divorced or not.
I'm not going to lie..something doesn't feel right here