Adultery in Family Court

Buyers Remorse: Can a Marital Settlement Agreement be enforced by the Family Court before it has been approved and adopted as a court order

Many marital settlement agreements are the result of an extended period of mediation. Sometimes one of the parties wakes up the next morning and feels that they got the short end of the stick and are no longer willing to abide by the terms. Can they withdraw their consent?

It depends.  Our jurisprudence encourages people to make out of court settlements. In fact, our courts were designed to be the last place people turn when having difficulties resolving disputes. As a result, once an agreement has been made, it may be binding on both parties if certain circumstances have been satisfied. 

This issue was recently addressed by the Court of Appeals in the matter of Kinghorn v Sakakini.  This was a property dispute in Beaufort and the parties attended mediation with their lawyers and reached a written, signed agreement.  A few days later Sakakini notified Kinghorn that he no longer desired to abide by the terms of their agreement and wanted the matter set for trial.

Kinghorn filed a motion to enforce the settlement agreement. The court stated that “It has long been the policy of the court to encourage settlement in lieu of litigation, and courts have usually enforced settlement agreements. There can be no doubt but that the trial court retains inherent jurisdiction and power to enforce agreements entered into in settlement of litigation before that court”.

The court further referenced Rule 43(k) of the Rules of Civil Procedure which states that an agreement can binding when it is “…reduced to writing and signed by the parties and their counsel”.  In other words, a comprehensive written settlement agreement resolving all issues in a dispute may well be enforced by the court, before it has been formally approved.

Parties to a Marital Settlement Agreement need to be careful what they sign! While most of us try to resolve marital litigation to before a trial, it is important that any written agreement be carefully considered and fully understood before it is signed, otherwise it may be made a court order against a person’s later wishes.

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