The term ‘without prejudice’ may appear on solicitors’ letters you receive and you may hear it in meetings you have with your spouse’s lawyers – but what does it mean?
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Avoiding confusion in divorce negotiations
During divorce proceedings, and in the pre-action stage of any divorce settlement, the parties will be given the opportunity to negotiate.
‘Without prejudice’ negotiations mean that if any concession is made during the talks in a genuine attempt to settle the claim it will not be used against that party in court.
If such negotiations are a genuine attempt to seek agreement or further the settlement dialogue it can be implied that they are ‘without prejudice’, but in informal situations it may always be necessary to express this directly.
The protocol exists to promote free and genuine negotiation between divorcing parties. It is applied in oral (whether face-to-face or over the telephone) and written communications so that any discussions or offers made, which aim to help in making a settlement acceptable to both parties, will not later be used as evidence.
Here’s a scenario:
AX’s financial claim seeks a lump-sum divorce settlement of £250,000 from BX. AX’s solicitor writes to BX’s legal team on a ‘without prejudice’ basis stating that AX is willing to accept an immediate payment of £200,000 from BX in full settlement of her claim. BX rejects this offer. When the financial claim on divorce is later heard in court, BX is not allowed to refer to this attempted settlement and AX is still able to seek the original amount of £250,000.
Informal negotiations may not be ‘without prejudice’
In July 2014 a case was reported whereby a wealthy businessman failed in his legal bid to claim a dinner date he had with his estranged spouse was, in fact, a ‘without prejudice’ meeting.
The wife told the court about the meeting which occurred at the time their marriage was breaking down. She said that her husband asked her to sign a ‘post-pre-nup’ in, what he called an attempt to commence reconciliation. The wife refused to sign the document because she felt it referred too heavily to the consequence of any separation. She said her husband became very angry and told her she had to sign it.
The husband asked for a redaction of the wife’s statements because the meeting had been held ‘without prejudice’ and, he claimed, was “conducted with a view to settling [his wife’s] financial claims arising from our marriage.”
The judge dismissed the application, saying that formal financial settlement proceedings had not commenced when the dinner took place and that no financial dispute had existed at the time. It was noted that the words ‘without prejudice’ were not used at the meeting and that it would not have been clear that the dinner was being used as a meeting to discuss a settlement.
Do you need a solicitor for financial settlement negotiations?
Healys team of family lawyers in London and Brighton provide represent for clients who are about to commence, or are already in the midst of, negotiations regarding a financial claim on divorce.
We have many years’ experience in this field and have successfully represented a large number of clients in making and defending high-value or complex financial claims on divorce.
Call us today or email the team at firstname.lastname@example.org and we will call you back to discuss how we can help.