Affidavits or Statements of Means and Vouching Documentation in the Context of Negotiating Separation Agreements
The Family Law Committee has recently discussed the question of affidavits or statements of means and vouching documentation in the context of negotiating separation agreements.
The committee is of the view that it is recommended best practice that vouched affidavits of means be sworn by both parties and exchanged prior to the negotiation and/or conclusion of a deed of separation.
The committee is also of the view that this practice should occur following the conclusion of a mediated agreement, even in circumstances where all parties are agreed that it is unnecessary to raise financial queries. In these circumstances, practitioners should advise clients, and indeed colleagues, that the exchange of vouched affidavits of means also applies in this situation. This is not with a view to reopening any issues that may have already been discussed and agreed within the mediation process. The purpose is to satisfy the requirements of full financial disclosure in the context of implementing what has been agreed through mediation into a legally-binding separation agreement. If anything arises from the disclosure process, the parties should be recommended to return to the mediation process to deal with such additional matters in order to maintain the integrity of the mediation process and build upon what they have already achieved through that process.
The exchange of vouched and sworn statements of means may also be of assistance in the context of subsequent divorce or other applications, where the level or adequacy of financial disclosure may be at issue. Finally, the committee is also of the view that it may be advisable to annex or append the sworn affidavit of means to the separation agreement as a schedule.
This practice may also, of course, apply to the negotiation and conclusion of prenuptial agreements.