The divorce process: without prejudice

During the course of your divorce process and financial resolution process, you’re bound to hear legal jargon. It can be confusing, and you should always ask if you are not sure what something means, as it’s not always obvious.

Take, for example, what happens once you and your spouse have both set out what you need or want in settlement of your dispute. There is then a period of negotiation between your respective solicitors, during which you might come across the phrase without prejudice in copies of correspondence, etc. It might be on some of the letters that set out what you or your spouse would find an acceptable compromise to the terms you’ve each made; or you might hear it in conversations or see it in emails or other documents with regard to your case.

‘Without prejudice’ is like being ‘off the record’. It can be applied to anything written or spoken where there is a genuine attempt to try to reach an agreement or settlement on an existing dispute, before it goes to court. Such a document or conversation can’t then  later be brought before the court as evidence of an admission against the interest of the party that made it. The opposite to ‘without prejudice’ is ‘open’ – so anything that is open correspondence is available to be included in the bundle of documents prepared for the court hearing.

By having the ‘without prejudice’ principle, both parties are able to speak more freely in their divorce process than they might in court. You can explore compromise options without jeopardising your position, should the negotiations fail. The judge isn’t going to see or know that you might settle for less, given certain compromises on the other side, for example.

It’s important to note that the without prejudice principle only applies where there is a genuine attempt to sort out your dispute; if it’s not, it might end up as evidence after all, as in the case of BE v DE [2014] EWHC 2318 (Fam).

Here, the husband presented the wife with a document at a dinner meeting they had. He said it was a proposed written agreement to settle their finances, so that they could concentrate on resolving their marital differences. The wife later included the document in her court evidence, and the husband appealed for it to be removed. The judge refused his application. The document was not marked ‘without prejudice’, but if had it been seen as a genuine attempt to be part of or promote negotiations it could still be covered by the principle. However, the judge decided that it wasn’t even clear at the time of the meeting that there was a dispute to settle or that the wife saw the occasion as a negotiating opportunity – she thought they were there to try and save their marriage. The judge also decided that the document was not a bona fide attempt by the husband to make a settlement, it was instead ‘seeking to impose his will on her’. In this case, the husband’s application was refused, the ‘without prejudice’ privilege was withheld, and the wife was allowed to keep the document as part of her evidence.

So that’s ‘without prejudice’, one example of legal jargon you might come across as part of any normal divorce process. At Andrew Isaacs Solicitors, we believe that it is important that you can understand the process and feel comfortable to ask questions if something isn’t clear. It’s your case, your information, your life, so it’s vital that the professional advice you receive is properly explained. Then we can move forward together to find resolution.