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F E Smith
F E Smith, Advocate
Category: Family Law
Satisfied Customers: 8560
Experience:  I have been practising for 30 years.
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As part of my separation agreement I signed a

Customer Question

As part of my separation agreement I signed a confidentiality clause that prohibited me from speaking about my ex partners business dealings, can he do this?
Submitted: 3 months ago.
Category: Family Law
Expert:  F E Smith replied 3 months ago.

This is called a gagging clause.

It depends on the circumstances of the agreement and why there was this gagging clause, as to whether it would be enforceable or not.

Can I clarify anything for you?

Customer: replied 3 months ago.
you can clarify a few point for me. When theagreement was drawn up it was to prevent me from disclosing to anyone that my former partner, had breached certain contactual terms regarding the sale of his business. My question is, if he breached his contract and indeed discussed breaching it in depth with myself, how was he able to place a confidentiality agreement on me to prevent me from speaking
Customer: replied 3 months ago.
My partner and I were not married and after 15 years of living together with two children, i was not able to prove that I had contributed anything to the house. At the time of our separation, he was the legal owner of the house, all assets, and savings. He proposed giving me the family house but it was subject to me signing the confidentiality clause. At the time I was so exhausted with the whole process I took the advice of the solicitor who recommended I sign the agreement as soon as possible.
Expert:  F E Smith replied 3 months ago.

Gagging clauses are enforceable. However, they may not be enforceable if the party being gagged did not take legal advice on the effect of the agreement.

If he breaches contract, it’s a civil matter and it’s between him and his business and whoever sold it to. There is no liability to self incriminate. If they have not noticed the breach, then obviously, that works in his favour.

If you let me know what you are trying to achieve here, I can probably explain a little further what you could possibly do.

Customer: replied 3 months ago.
65532;i want to know two things, firstly can my ex partner enforce this agreement? He broke his contractual obligations to the buyer of his business, which was illegal, how can he therefore enforce a confidentiality agreement of me to prevent me from speaking the truth? Secondly, is there a time limit on this sort of agreement?
Expert:  F E Smith replied 3 months ago.

What do you want to achieve? Do you want to tell the buyer of the breach and if so, why?

Expert:  F E Smith replied 3 months ago.

..

Customer: replied 3 months ago.
No I do not want to tell the buyer. My ex partner was very controlling and psychologically abusive towards me, i feel now after 7 years away from him that this is the last element of control he still has over me. As a result, I want this agreement removed, or made null and void and just to expire. When the agreement was signed I was not advised of the implications, but told that unless i signed it, the separation agreement would be withdrawn. As I stated earlier, when it came to the separation, my ex partner owned the house, assets, and all savings; I was told I owned personal clothing, books, and jewellery only and had no claim over the house. Therefore, I signed the agreement to be able to provide a home for my children. So is there any way that this could be removed, or made void?
Expert:  F E Smith replied 3 months ago.

Unless he will agree to nullify the agreement (it only needs to be torn up) then the only way of getting rid of it would be by a court application which he may want to oppose. It could be an expensive and risky exercise with very little reward. At the moment, there is an agreement which may not be enforceable because you signed it under pressure/duress .

What doesn’t help with that argument is the fact that you did take legal advice and then signed it.

Unless he will agree to rip it up and if you don’t want to go to court, my suggestion would be to get a different solicitor to write to the X saying that they have seen the agreement and been asked to advise on it and that in their opinion, it was entered under duress and because it is covering up a breach of contract, it’s not enforceable anyway and that if he feels differently, he should make an application to court to have the efficacy of the agreement determined by a judge.

The general principle is that the courts will not enforce an illegal agreement. It’s debatable whether this is illegal because it’s just covering up a breach of contract. However if the solicitor were to allege that in his opinion it’s bordering on fraud and hence, it’s not possible to enforce an agreement covering up fraud, you may find the ex to be more reluctant to push it.

You can always say that unless he will agree to rip the agreement up, you will make the application to court (you don’t have to go ahead with it) to have the matter determined by the judge and then, the breach of contract is likely to come out if the other party are called as witnesses!

A solicitor will know how to couch the letter for you.it will have more weight coming from a solicitor than if it comes from you.

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

I can still clarify things for you.

Best wishes.

FES.

Customer: replied 3 months ago.
If I go to a solicitor, what should they specialise in, family law or business ?
Expert:  F E Smith replied 3 months ago.

Because of the nature of the subject matter and the nature of the agreement, it could be either.

The solicitor should mention that you have no intention of disclosing this to the contract parties, it’s just that you feel you were bullied into entering into it.

Customer: replied 3 months ago.
I can send you a copy of the original confidentiality clause but it has peoples names in it?
Expert:  F E Smith replied 3 months ago.

Why don’t you just put a piece of paper over the names and addresses when you scan it?

Customer: replied 3 months ago.
The first section is a general confidentiality clause and the section section relates directly to the business
Expert:  F E Smith replied 3 months ago.

Thank you. I have that now.

At the beginning of the agreement, what does it actually say it is you are not supposed to disclose? It does say that you’re not supposed to disclose the existence of this agreement. That is quite normal.

Just wondering what the substance of what else it is that you are not supposed to be revealing is referred to in the document as.

Customer: replied 3 months ago.
The second section ' *** will not reveal to any third party....' Refers to my ex partners sale of his business. Basically he broke the terms of the sale and I knew about it because he discussed in detail with me. This clause is to stop me speaking about it and was part of the seperation agreement. We were not married, and despite living together and having two children together, when it came to the separation I was shocked to find all assets were in his name only. I basically had a claim on nothing, so he agreed to give me our house but I had to sign this otherwise he would give me nothing.
Expert:  F E Smith replied 3 months ago.

I know what it says you can’t do and I know what it was intended to do. What I need to know is what exactly it is which you are not supposed to reveal to a third party. I want to know how the description of what you’re not revealing is

Customer: replied 3 months ago.
I am not sure it actually states that
Customer: replied 3 months ago.
It is a) and b) on the agreement
Expert:  F E Smith replied 3 months ago.

A is normal, you can’t disclose the terms of the agreement.

B is rather they because it doesn’t define what the financial particulars disclosed are and only says those which are disclosed during the course of the preparation of the agreement. So if that’s the only bit about confidentiality (which does say “Generally”) then as that information was actually the reason the agreement was drafted and it wasn’t disclosed during the course of the preparation of the agreement, then you are not bound by confidentiality.

BUT I can’t help feeling that there is more to it, somewhere else firstly for the above reasons but secondly because 14 refers to confidentiality “generally” not specifically.

Customer: replied 3 months ago.
Can I tell you the details?
Expert:  F E Smith replied 3 months ago.

Provided that it doesn’t identify any of the parties and provided it doesn’t breach the terms of the agreement which at the moment is still in force.

You could show it to a solicitor and that would breach the agreement. However attaching it on here where people may be able to see it would do.

If you send it to *****@******.***

They will send it to me and no one else will be able to see it.

Customer: replied 3 months ago.
shall I send you a copy of the full separation agreement including names?
Expert:  F E Smith replied 3 months ago.

I don’t need the names of its easier to send it as it is though, that would be fine. You aren’t breaching anything in that respect because you are seeking legal advice and under section B that is okay.

However, don’t attach it but send it to the email address.It will then be forwarded to me.

Customer: replied 3 months ago.
Thanks I will do that, I don't need to address it to anyone?
Customer: replied 3 months ago.
Just to add a little more context for you, let me give you some more background information. My ex partner and I had been together for 15 years and had two children together. When we separated I found out that all assets were in his name and that I was entitled to personal belongings only, if effect I had nothing. During the separation process, the solicitor I used basically said that what ever settlement was reach would be at his discretion as I was entitled to nothing. Following a conversation with my ex, he said he would do the right thing for us all; I then asked how I could trust him to do this as he had been deceptive when selling his business. Within about 48 hours, I received a phone call from my solicitor saying she had an offer which we couldn't refuse and to come in as soon as possible to sign it, which I did. The offer was subject to my signing the confidentiality clause which basically was to ensure I did not speak to the buyer of my ex's business to tell him about the breach. Does this add anything for you?
Expert:  F E Smith replied 3 months ago.

Just put For the attention of Fe E Smith. UK Law.

There is an argument that you could say you were pressurised into signing it because you had no money.

I’m just trying to ascertain whether there is anything in it which makes it unenforceable anyway in which case, you can just make that point to him.

Expert:  F E Smith replied 3 months ago.

I have the agreement now. It was the following clause 15 (which I didn’t have before) which is relevant to the business sale. It does gag you with regard to disclosing to 3rd parties information about the business sale.

The problem is that if you cancel the agreement, everything else in it is cancelled including the financial provisions so it would need an agreement just to cancel that small part.

It seems that he is unlikely to do that and you will be faced with making an application to court on the basis that you are being gagged regard to something which is potentially fraudulent and the court does not have the power to enforce something which is in effect covering up an illegal activity

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

I can still clarify things for you.

Best wishes.

FES.

Customer: replied 3 months ago.
basically there is nothing I can do?
Expert:  F E Smith replied 3 months ago.

You have no intention you say of disclosing this information.

There is an agreement and the agreement contains all sorts of other financial provisions and hence, if you breach the agreement, potentially makes the other financial provisions void.

About the most you can do is to say that you have no intention of being bound by that gagging clause because you feel that it’s just something which was put in new agreed to under duress. You can also say that you have been advised that the clause would not be enforceable in any event because it is covering up fraudulent or potentially fraudulent transaction.

The two questions you asked were can he enforce the agreement, and is there a time limit?

There is no time limit. It can last for ever provided lasting forever does not go beyond what is reasonable to protect his interests.

I think it’s unenforceable for the reasons I mentioned earlier.

With regard to enforceability, if you go and tell the buyer what happened, there is actually nothing for your ex to enforce other than to claim that the whole agreement is void. He would not escape financial liability to you, it would just mean that there would have to be another agreement you would then have to argue over. The ultimate financial provisions, if decided by the court, are not likely to be much different.

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

I can still clarify things for you.

Best wishes.

FES.

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