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Mutual Consent Written Agreements in Family Law - Research Findings

DescriptionTo examine the process, content and consequences of Minutes of Agreement and Joint Minutes of Agreement.
ISBN
Official Print Publication Date
Website Publication DateDecember 29, 1998
Legal Studies Research Findings No. 5 (1997)
Mutual Consent Written Agreements in Family Law

Fran Wasoff, Ann McGuckin and Lilian Edwards

ISBN0-7480-5970-9Publisher The Scottish OfficePrice £5.00
The study examines agreements made by separating and divorcing couples and provides a picture of some informal aspects of family law in Scotland. It estimates the volume of informal agreements in family actions, describes their content, and assesses their purpose, importance and durability. A survey of 1042 written agreements made in 1992 was conducted, followed up by in-depth telephone interviews with 30 parties to such agreements.
Main findings
  • Two types of written agreements in family law are informally negotiated and can be made legally enforceable; they are Minutes of Agreement (MoAs) and Joint Minutes of Agreements (JMoAs). About 3,000 MoAs were registered in Scotland during 1992 and at least 1,443 JMoAs were lodged in Sheriff Court actions during the same period.
  • Agreements were regarded as durable by the parties: most had been complied with for two years after they were made. In particular, most parents reported that aliment was paid regularly and on time. Despite high levels of dissatisfaction with the terms of the agreements and changes in circumstances, few people had varied their agreements. Nearly all agreed with the proposition that when an agreement is reached voluntarily it is more likely to last.
  • In 95% of agreements involving children, custody was discussed and usually agreed: 91% of mothers and 6% of fathers obtained sole custody of children, and 3% of parents agreed joint custody.
  • Aliment for children was discussed in two-thirds of all agreements involving children; in about 90% of relevant MoAs, and half of JMoAs. When specified, the average amount of aliment agreed per child per week was £31.40. The amount of aliment per child decreased as family size increased.
  • Periodical allowance was agreed in only 10% of cases, showing that most agreements represent a 'clean break' financially between spouses. Where it was agreed, periodical allowance was typically for a duration of three years.
  • Though pension assets are regarded as matrimonial property, it was rare for pensions to be mentioned in agreements (found in only 9% of all agreements); and rarer still for documents to include details of payments specifically related to pensions (recorded in only 3% of cases).
  • Minutes of Agreement are important for redistributing the matrimonial homes of separating couples who are home owners. Over 3/4 of MoAs were made by home owners. The most common redistribution was a transfer of one spouse's share of the matrimonial home to the other. Typically, the spouse occupying the matrimonial home assumed responsibility for the mortgage payments.
  • Women were twice as likely to remain in the matrimonial home as men. Where mothers had custody of children, about two-thirds (62%) remained in the matrimonial home.
Introduction
Informal processes in law that do not involve the courts are commonplace, particularly on divorce, where much legal activity is not reflected in court business. Many separating or divorcing couples already make their own agreements, with the help of lawyers, concerning the division of matrimonial property, financial provision and arrangements about children. Yet little is known of the process, content or consequences of such settlements. This paper provides a summary of a study which was undertaken to explore this aspect of family law. The research is complemented by related work on family business in the sheriff court1.
Written agreements
There are two legally distinct types of written agreements in family law that are negotiated and agreed by the parties and can be made legally enforceable: Minutes of Agreement (MoAs) and Joint Minutes of Agreement (JMoAs). A Minute of Agreement is a legal document registered with the Keeper of Registers and held as a public record in the Scottish Record Office; and a Joint Minute of Agreement forms part of a court action.
Approximately 3,000 MoAs were registered in Scotland during 1992 and at least 1,443 JMoAs were lodged in Sheriff Court actions during the same period. Most (83%) written agreements were made by married couples who were separating.
Agreements are written in a variety of styles and cover a wide range of issues arising from relationship breakdown including parental rights, financial provision on divorce, the matrimonial home and other matrimonial property.
About 77% of those who made a MoA were home owners. The proportions of couples with JMoAs who were home owners (48%) was similar to home ownership proportions in the general population.
The presence of children under 16 was mentioned in 70% of all agreements: 59% in MoAs and 85% in JMoAs. The latter appear to be used particularly for resolving disputes about children.
Redistributing matrimonial property
Matrimonial property, which is property acquired by either spouse from the date of the marriage to the date of the final separation and still owned at separation, featured in nearly three-quarters of MoAs but in one-third of all JMoAs.
The matrimonial home was discussed in 57% of all agreements, and in 74% of MoAs. The redistribution of the matrimonial home was agreed in almost all cases where it was mentioned, most commonly (in just under two-thirds of cases) transferring one spouse's share in the matrimonial home to the other. Where a decision to sell the matrimonial home was made, an equal division of free proceeds between the two parties was the norm.
The occupancy of the matrimonial home was considered in 70% of cases where it was discussed. Women were twice as likely as men to continue occupying the matrimonial home, but this pattern was more pronounced in JMoAs, where in 82% of cases, the woman remained in occupancy. About two-thirds (62%) of mothers with custody of children remained in the matrimonial home. It was common for whoever occupied the matrimonial home to be responsible for mortgage payments.
Lump sum payments were often discussed, and a sum to be paid was agreed in 40% of MoAs and 17% of JMoAs. Where the sums agreed were recorded, they ranged from £200 to £300,000. Although provision to pay a lump sum was found in a minority of cases, they were more common than in divorces generally.
While pension assets are regarded as matrimonial property under s.10(2) of the Family Law (Scotland) Act 1985, it was rare for pensions to be discussed in agreements (in 9% of agreements); and rarer still for payments specifically related to pensions to be agreed (in only 3% of cases). Furniture and plenishings were discussed in over half of MoAs but rarely in JMoAs. Few of the new provisions in the Family Law (Scotland) Act 1985 providing for greater flexibility in the redistribution of matrimonial property were used.
Financial provision on divorce
Periodical allowance was discussed in 16% of agreements, and agreement made to pay a sum in 10% of cases. Where recorded, the mean amount per week was £36 and the duration of periodical allowance was typically 36 months. These findings show that continuing support for ex-spouses after divorce is agreed by only a small minority of couples, and that most couples who make an agreement agree a 'clean break' financially between themselves.
Aliment for children was discussed in 67% of all agreements involving children: in almost 90% of relevant MoAs, and half of JMoAs. In almost all agreements where aliment was discussed, there was an agreement to pay aliment, though a sum was not always specified. Parents making MoAs were particularly likely to agree payment of aliment. It was rare to find either an agreement not to seek aliment or an example of a parent seeking to sever financial ties with their children. When specified, the average amount of aliment agreed per child per week was £31.40, higher than the mean level for all divorces involving children. The sum per child per week decreased as the total number in a family increased.
Custody and access
In 95% of agreements involving children, custody was discussed and usually agreed. The custody arrangements were that 91% of mothers and 6% of fathers obtained sole custody of children, and 3% of parents agreed joint custody; similar to custody awards in divorces. It is perhaps surprising that joint custody was agreed in so few cases given that couples were able to reach a mutual agreement about other matters that arise on marriage breakdown, and given the context of trends in family law to encourage joint care of children after relationship breakdown.
Access was discussed in 70% of all cases involving children. In about one-fifth of these, precise arrangements were made about access visits, but, in almost four-fifths of cases, access was more typically left to mutual arrangement between the parties.
Perspectives of the parties to agreements
Those interviewed for the study made agreements for a variety of reasons: some thought it was the right thing to do when separating; others were prompted when a new partner appeared; and others saw agreements as a means of obtaining financial security. Interviewees saw agreements as important for registering the changed nature of their relationships and to retain control over matters to be settled as a consequence of their separation. They generally believed that these were private agreements, not subject to public view.
Agreements were successful in enabling 'clean break' settlements to be reached in relation to property and financial provision. They were less successful in relation to arrangements for access and custody, which remained areas of dispute in the longer term as the needs of the parties and their children changed
The language of MoAs is civil, business-like, and unemotional, with no hint of the conflict, compromise or feelings of injustice and anger that were reportedly commonplace in reaching agreement. Many people felt they had made agreements under duress and agreed to the terms as a means of avoiding or decreasing conflict. Most respondents were dissatisfied with the outcomes two years later. Despite this, agreements were generally durable and their terms observed. In particular, the majority of parents reported that aliment was paid regularly and on time. Few of the parties had varied their agreements and nearly all agreed with the proposition that when an agreement is reached voluntarily it is more likely to last.
Women reported that they were ill-informed about the importance of their husband's pensions, their rights in relation to pensions and complained of unfairness that resulted from non-disclosure of their husband's assets. Many interviewees regretted not spelling out specific arrangements for custody and access. Nearly all felt that they did not receive adequate advice on the long term implications of divorce or separation. Some reported dissatisfaction with the quality of service they received from their solicitors, from mediation services and from the Child Support Agency.
About the study
This is the first study to examine in detail legally binding written agreements in family law made by separating and divorcing couples and by parents about future arrangements for their children. The research was conducted between March 1994 and March 1995 at the University of Edinburgh by Frances Wasoff and Ann McGuckin, Department of Social Policy and Lilian Edwards, Department of Private Law. The study was funded by the Legal Studies Research Group of The Scottish Office Home Department. It is based on data collection from agreements made in 1992 that are held by the Scottish Record Office (SRO) and in four Sheriff Courts across Scotland, and from telephone interviews with 30 parties to these agreements.
The aims of the study were to examine the extent, nature and outcomes of two types of agreement in separation and divorce: Minutes of Agreement (MoAs) and Joint Minutes of Agreement (JMoAs). In particular, the study identifies the volume and proportion of types of written agreements connected with family actions, describes their content, and assesses the purpose, importance and durability of arrangements contained in written agreements relating to family business involving children.
This research is complemented by another study which conducted a survey of family business in the courts, and documented the outcomes of processes of law involving the courts. These studies provide baseline data about the operation of Scots family law immediately before the implementation in April 1993 of the Child Support Act 1991, to inform future evaluation of the impact of that legislation on civil law in Scotland. They also provide more general information about family law in Scotland.
"Mutual Consent: Written Agreements in Family Law" the research report summarised in this Research Findings,may be purchased (price £5 per copy).
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