Cake & Sharing: Reaching Agreement, or Reaching a Fair Agreement?
Why understanding what you really want matters when separating
As family solicitors, we frequently meet clients who open the conversation with the same words: “We’ve already reached an agreement, we just need you to write it up.” On the face of it, that sounds like a positive starting point. The parties have spoken, compromises have apparently been made, and there is a wish to avoid conflict. But before any agreement is committed to paper, there is an important question that every separating couple needs to ask themselves – and it is one many people skip over entirely.
Are you looking for an agreement, or are you looking for a fair agreement?
These are not the same thing, and confusing the two is one of the most common pitfalls we see in our work.
The difference between agreement and fairness
An agreement, in its simplest form, just means that both people have said “yes.” It does not necessarily mean that both people fully understood what they were saying yes to, that they had all the financial information in front of them, or that the outcome reflects what they would each be entitled to in law. People say yes for all sorts of reasons – to keep the peace, to bring matters to a swift end, out of guilt, out of exhaustion, or because they feel under pressure. None of those reasons make for a durable settlement.
A fair agreement, by contrast, is one that both parties can live with comfortably for years to come, because each of them has gone into it with their eyes open. They have had the chance to understand their position, take advice, consider the alternatives, and weigh up the long-term implications. Fairness does not mean that everything is split exactly down the middle – it means that the outcome is reasonable, informed and sustainable.
The cake and the knife
There is a simple childhood lesson that captures the principle of fairness beautifully. If you ask a child to share a cake with another child, the trick is to give one child the knife and let the other choose which piece they want. The child holding the knife knows that whichever slice they create, the other child gets first pick – so they have every incentive to cut the cake as evenly as they possibly can.
It is a small example, but it tells us something important. Fairness is not just about the outcome; it is about the process that gets you there. The arrangement works because both children have a meaningful role, neither has the upper hand, and the rules are clear from the start.
Try applying that test to the agreement you and your former partner have reached. Did you both have a genuine say? Did you both have the same information about the assets, debts, pensions and incomes involved? Did you both feel able to push back, or did one of you do most of the cutting and the choosing? If the answer makes you uncomfortable, that is worth paying attention to before signing anything.
Why this matters in practice
When a client tells us they have already reached an agreement, our role is not to tear it up. It is to make sure they understand what they have agreed to, how it compares to the range of outcomes a court might consider reasonable, and whether anything important has been overlooked. Pensions, future earning capacity, the tax treatment of certain assets, and the housing needs of any children are all areas that are commonly missed in agreements reached around the kitchen table.
An agreement that turns out to be unfair, or that was reached without proper disclosure, is not always the end of the matter. It can be challenged, reopened, or set aside, leading to exactly the kind of conflict and cost that the parties were trying to avoid in the first place. Taking the time to test the fairness of an agreement at the outset is almost always cheaper, quicker and less stressful than trying to unpick a flawed one later.
How we can help
Resolution – the national organisation of family justice professionals – promotes a constructive, non-confrontational approach to separation. As Resolution members, we are committed to helping clients reach outcomes that are not only agreed but also genuinely fair, sustainable and considerate of any children involved. That might mean reviewing what you have already discussed, gently testing it against the relevant legal principles, helping you fill in any gaps, or supporting you through mediation, collaborative law or solicitor-led negotiation.
If you are considering settling matters with your former partner, please do not feel that taking advice means you are gearing up for a fight. It is the opposite. Good advice helps you to make decisions you will not regret, gives you confidence that the arrangement is properly thought through, and ensures that what is finally written down is something you both genuinely choose – not just something you both happened to say yes to.
Before you ask us simply to write up what you have agreed, ask yourselves first: is this an agreement, or is it a fair agreement? If you are not sure, that is exactly the moment to pick up the phone.
Simon Walker – Senior Associate Solicitor
Simon.Walker@mogersdrewett.com