When spouses reach agreement on the terms of their divorce, it is important that those terms are recorded clearly and accurately.
A well-drafted divorce agreement should deal comprehensively with key issues such as the matrimonial home, division of assets and liabilities, maintenance, and arrangements for the children. It should also set out clear and workable terms on how each agreed arrangement is to be carried out, including any relevant timelines, responsibilities, and practical steps.
This helps minimise ambiguity and reduces the risk of further disputes arising after the divorce. Reaching an agreement is only part of the process. Its terms should also be clear, complete and sufficiently precise to avoid uncertainty as to each party’s obligations.
A well-drafted agreement should set out not only the agreed outcome, but also the manner and timeframe in which each arrangement is to be carried out, thereby reducing the scope for further disputes after the divorce.
Key Points
- Recording What Parties Have Agreed
- Risk of Future Disputes
- Issues You May Have Overlooked
- Formalising the Agreement
- Greater Certainty After Divorce
- Frequently Asked Questions
Clearly Records What Both Parties Have Agreed
A properly drafted agreement will set out parties’ respective rights and obligations during separation/divorce as agreed between parties. This is especially important where your loved ones and assets are concerned.
Depending on the circumstances, the agreement may address matters such as the division of matrimonial assets, the matrimonial home, liabilities, maintenance and arrangements for the children. Setting out these matters with sufficient clarity helps ensure that both parties understand their respective obligations and the practical steps required to give effect to the agreement.
Reduces the Risk of Future Disputes
Prior to entering into an agreement, parties will have to discuss and reach an agreement on their intentions, respective rights, and obligations during separation/divorce.
When parties have reached an agreement, legal experience and skilled drafting is essential to accurately incorporate parties’ agreement in writing.
Even where both parties agree on the outcome, disagreements can still arise if the terms are vague or open to different interpretations.
For example, provisions relating to the matrimonial home may need to specify when a sale or transfer is to take place, who is responsible for the necessary steps, and how the proceeds are to be dealt with. Arrangements for the children may similarly require sufficient detail on matters such as access schedules, school holidays, overseas travel and handovers.
Clear drafting helps ensure that the agreement can be applied in practice and reduces the scope for later disagreement over what the parties intended.
Identifies Issues You May Have Overlooked
A properly drafted agreement should reflect parties’ intentions, respective rights and obligations in precise and clear terms.
An ambiguous agreement or even a poorly drafted term may result in unnecessary misunderstandings between parties, which may lead to further costs and time spent on litigating the issue in Court.
Parties negotiating a settlement themselves often focus first on the main points of agreement, but there may be other financial or practical matters that also need to be addressed before the settlement is finalised.
These may include CPF consequences, existing debts, refinancing requirements, maintenance obligations, tax or transaction costs, and responsibility for future expenses relating to the children.
Considering these issues at an early stage can help ensure that the settlement is comprehensive and that important matters are not left unresolved.
Allows the Agreement to Be Properly Formalised
There is an important distinction between reaching a private agreement and having agreed divorce terms formally recorded by the Court.
Where spouses have reached agreement on the relevant ancillary matters, those terms may be incorporated into a Draft Ancillary Reliefs Order (DARO) and submitted to the Court for approval.
Once approved and recorded as an order of court, the agreed arrangements are formally recorded and become binding on the parties. Clear and precise drafting is therefore important, as the wording of the order will govern how the parties’ respective obligations are to operate after the divorce.
Read More:
- Fixed Fee Uncontested Divorce Packages Starting from $1500
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- The Difference Between a Contested & Uncontested Divorce
Provides Greater Certainty After Divorce
Ultimately, the agreement is meant to protect you and your rights.
Once the agreed terms are incorporated into a court order, both parties are expected to comply with them. If either party later fails to do so, having clear and specific orders can make it easier to identify what was required and to consider the appropriate steps that may be taken.
For this reason, the terms should be drafted in a manner that is practical, precise and capable of being implemented.
Frequently Asked Questions
It is still a legal agreement. However, a private agreement is not automatically enforceable. While it can provide evidence of what the parties had intended and agreed, this should be distinguished from a court order. Where agreed divorce terms are approved and recorded by the Court in a Consent Order, those terms become orders of court, which can then be enforced.
This depends on the circumstances of the marriage. Common matters include the matrimonial home, division of matrimonial assets, liabilities, maintenance and arrangements concerning the children. The agreement should also address the practical steps, the rights and obligations of each party, and timelines required to implement the settlement.
Spouses can discuss and reach their own agreement. However, the terms should accurately reflect what has been agreed and take into account the legal and practical consequences. Legal advice can also help identify issues that may have been overlooked.
This depends on the nature of the agreement and whether the terms have already been incorporated into a court order. Once orders have been made, changing them may require the agreement of both parties or a variation application to the Court, depending on the circumstances and the particular order involved. It should also be noted that where an order has been made by consent, a party seeking to vary that order may be required to explain why the matter relied upon was not contemplated at the time the consent order was entered into, and to establish that there has since been a material change in circumstances warranting a variation. The timing of any application for variation may also be a relevant consideration.
If the agreed terms have been incorporated into a court order, failure to comply may give rise to enforcement applications. The appropriate course will depend on the particular order and the nature of the non-compliance.
It would be helpful if parties set out their agreement as it makes things clear between the parties. Alternatively, their agreement on the relevant divorce and ancillary matters can be set out in the Originating Application for Divorce which will be signed by the parties before it is filed in court.
Understanding Your Next Steps
If you and your spouse have reached an agreement, or are working towards one, it can be useful to have the proposed terms reviewed before they are finalised.
GJC Law’s family lawyers can advise on divorce agreements, uncontested divorce proceedings and the preparation of Consent Orders involving matrimonial assets, property, maintenance and arrangements for children.
If you have reached an agreement with your spouse, or are considering proposed settlement terms, a Strategic Divorce Consultation can help you understand the legal and practical implications before those terms are finalised. During the consultation, a family lawyer can review your circumstances, identify issues that may require further consideration and advise on the proposed terms and next steps.
30- and 60-minute Strategic Divorce Consultations are available.
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We offer a range of consultation options depending on the guidance you need, from a Free 20-minute Divorce Process Consultation to a Strategic Divorce Consultation for personalised legal advice.
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