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Why the detail always matters …

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How many times do we all make assumptions that another person's understanding of a situation/agreement is same as ours? Often by pure chance that we realise there is a misunderstanding and the situation is resolved easily. Other times the consequences of our misunderstanding can be costly.

Assumptions can also mean mistakes that might be mutual, inadvertent or deliberate.

Then there is hindsight and regret both of which can lead to reinterpretation of events/agreements/discussion.

All of the above invariably mean upset, frustration, anger and ultimately prompt Court proceedings where the stakes and consequences inevitably rise.

Key to minimising the consequences of assumptions, mistake, hindsight and regret is communication.

There are always going to be things that happen over which are outside of our control but we can try to minimise the impact of much of the above by explaining and documenting what we understand words and agreements mean.

In the case of Derhalli v Derhalli [2021] EWCA Civ 112 Mr Derhalli tried to argue that his ex-wife should pay him £5,000 per week rent for continuing to occupy the former matrimonial home (a property he owned in his sole name) until sale and in addition £600,000 in damages for trespass.

The parties' Consent Order confirmed that the former matrimonial home should be sold. The Order also confirmed their agreement that Mrs Derhalli would pay the outgoings for the property.

What the Consent Order did not stipulate was that Mrs Derhalli had the right to occupy the property until sale. Why was this confirmation not included in the Order? Perhaps because Mrs Derhalli and the children had been living in the former matrimonial home for 2 years by the time the Consent Order was made and it was simply "assumed" that this living arrangement would continue until sale.

It was also "assumed" that the property would sell quickly - it did not. It took almost 3 years for the house to sell and the eventual sale price was almost £2million less then anticipated.

Unfortunately for Mr Derhalli the Consent Order also provided for Mrs Derhalli to receive fixed amounts by way of Lump Sum Orders from the proceeds of sale.

The net result of the above was that only Mr Derhalli was impacted by the delay in achieving sale of the former matrimonial home and its reduced sale price.

So Mr Derhalli attempted to "recover" some of his loss by first serving to notice to quit on Mrs Derhalli indicating that she could stay in the property if she paid him rent of £5,000 per week. When Mrs Derhalli refused Mr Derhalli issued possession proceedings citing the fact that Mrs Derhalli had removed the Matrimonial Homes Notice she had lodged with the Land Registry and thus removed her right to occupy the property. Initially Mr Derhalli was successful. Mrs Derhalli appealed that decision - she was successful, so Mr Derhalli appealed the appeal decision.

Ultimately it was determined that any dispute about the interpretation of the Consent Order should be and had been dealt by the Family Court with a common sense approach adopted that it was understood/assumed that Mrs Derhalli and the children would remain in the former matrimonial home until sale - if this was not the case - why would Mrs Derhalli have agreed to pay the outgoings for the property until sale was achieved. It was unfortunate, but for many reasons an envisaged sale price for a property is not achieved - the reason the amount of the lump sums had been fixed was because this was the amount needed to rehouse Mrs Derhalli and the children - Mr Derhalli's appeal was therefore dismissed.

A very costly exercise for Mr Derhalli who may always have understood the living arrangement assumption in the Consent Order however the lack of detail gave him the opportunity to challenge that arrangement. As Lord Justice King commented had the Consent Order confirmed the assumption then everyone could have been saved a lot of cost and anxiety. Mr Derhalli would still been aggrieved as a consequence of the drop in the housing market - wishing with hindsight - that he had reached different agreements but his ability to seek to re-interpret the assumptions envisaged by the Consent Order would have been very difficult.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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