Matrimonial Finances
Recently, the courts addressed the principles familiar to family lawyers, of determining the fairness of decisions concerning division of financial assets of separated couples, and the requisite needs associated with each party and, of course, if applicable, the children[1].
They considered the elemental differences between prenuptial agreements, postnuptial agreements, separation agreements and what are called ‘Xydhias’ agreements. This is an agreement that is not yet approved by the court in final settlement, but binding save for exceptional circumstances. Non-disclosure of financial assets by one or both of the parties to the case being one of them.
These are contracts, not final court orders.
‘The rule of law, on which all social order depends, insists on contracts being generally upheld.’
So, if a contract is deemed proven as unfair because of, say, mistake, fraud, or duress, it’s not enforceable. ‘Unfair’ of itself is not enough to repudiate the contract if a court considers that, in the round, the agreement falls within the wide discretion of the court when determining fairness in the round.
‘So far as the “needs” principle is concerned there is an almost unbounded discretion.’
That is because every matrimonial financial circumstances are different.
‘….there is a range of possible future standards of living….within which the court can (determine as reasonable) in a pure exercise of discretion immune from (appeal).’
The court has wide discretion when determining what is a fair distribution of assets between separated couples in order to satisfy respective needs.
However, if it is considered by the court that needs of one party are clearly not met, this leads to unfairness. So, any of the contracts in paragraph 2 above, can be determined as unenforceable.
We can see you here for a free initial consultation about this and we also offer fixed fee consultations to go into more depth with you.