HM Insights

In divorce cases, settling for less can sometimes be worth much more

You don't have to read the tabloids every day to know that newspapers love a high-profile, bitter divorce case – preferably with multi-millions at stake. 

However after the once-private lives of those involved have been laid bare, the reports often conclude with the fact that despite the court finding in one party's favour, no money has changed hands and both sides, including the 'winner', were better off before the case began. 

Beyond providing entertainment to the readers, these stories are cautionary tales for anyone involved in divorce proceedings where significant assets are at stake.

Often, an offer of settlement is made before or early on in the proceedings. No matter how much someone believes they are due, you must always give consideration to just how difficult it may be to extract the money from the individual in considering any offer to settle. As the saying goes, a bird in the hand is worth two in the bush. 

A court order is, at the end of the day, just a court order. It is not money in the bank and it is not, in and of itself, of any value if the person against whom the award was made does not have the funds to pay because, for example, they have been made bankrupt or their resources are out of the jurisdiction and cannot readily be attached.

This is something that needs to be considered when offers are made in litigation generally and in particular in family cases, where there is regularly a suspicion that the other spouse will take steps to ensure that the other will not receive what is due to them.  International cases are far more frequent nowadays with people from the UK working all around the world, often earning fairly large sums of money in a tax-free environment. Some divorce settlements, on paper at least, are pretty large.  When offers are made, however, due consideration should be given to the complexity of enforcement. Sometimes either shaping an award focused on assets within the UK which are more easily realisable or even taking a discounted amount paid up front will have advantages over fighting it out for the last penny in a court judgement – especially if, after "winning", a whole other round of enforcement commences with an uncertain outcome.

Hindsight is a wonderful thing and it's easy after the fact to say that someone should have taken the offer, provided it was actually paid at that point (with of course suitable default penalties). However, at the time taking a small proportion of what you seem entitled to is an awfully big decision and more so when the numbers involved are awfully big.

A court judgment is more than just a piece of paper, but it should not be seen as the end point. It does not pay the mortgage. It does not pay school fees. The judgement being enforced or fulfilled is the end that family lawyers aim for and, as well as weighing up the merits of any offer made in terms of its value relative to the claim, the value of any offer relative to the complexities of enforcement must also be considered. To fail to do so is short-sighted to say the least

Janice Jones is a Partner in Harper Macleod's Family Law team with more than 20 years experience in all types of actions.

Harper Macleod's team of family solicitors understands that divorce and separation can have a huge impact on your life, and can guide you through the best course of action with sensitivity and objectivity. Getting the best advice is crucial to resolving your situation, and there are many options available to you, from litigation and arbitration to negotiation, mediation and collaboration. We have also designed a number of packaged fees which, in certain circumstances, will let you know from the outset what the costs will be.

To talk to Janice or one of our team call 0141 227 9545.