In the context of Family Law, a separation agreement is an informal agreement written between a separating couple. It usually outlines the issues that have been agreed on, mainly regarding the property settlement and is done to “save time and money” without the involvement of lawyers.
People often think that obtaining the assistance of a Family Lawyer will unnecessarily complicate the process and be expensive. This is a common misconception as instructing a Family Lawyer can, in fact, help ensure a more efficient resolution to your matter and can ensure that the agreement reached, is documented in a legally binding way.
The problems with Separation Agreements
Put simply, they are not legally binding.
Whilst a separation agreement may be a useful “steppingstone” towards a legally binding agreement, it cannot be enforced. If your former partner changes their mind with respect to the signed agreement you are back at square one, regardless of whether the agreement was signed, dated and witnessed. It is not legally binding.
Even when you and your former partner are amicable, circumstances can (and, unfortunately, do) change. People can fall ill, receive redundancy packages, receive inheritances, or even win Tattslotto. Without a legally binding document, your former partner could still pursue a different or even more advantageous settlement from you.
In this situation, the costs of instructing a solicitor to formalise your agreement, pales compared to the costs, both financial and emotional, that you might experience having to start your negotiations again.
Further, if you reached an agreement with your former partner without obtaining independent legal advice, you may be entering into an agreement that is “unfair”. You haven’t been able to make an informed decision, knowing what your rights and entitlements are.
Don’t rely on a Separation Agreement
There are only two ways you can document your agreement in a legally binding way:
- Consent Orders; or
- Financial Agreement.
This process involves the drafting of an Application for Consent Orders which sets out each financial circumstances of both parties and a Minute of Proposed Consent Orders which contains the terms of the agreement.
The two documents are signed by both parties and then filed with the Federal Circuit and Family Court of Australia. The parties do not need to attend Court, the process is entirely administrative. A Registrar will consider the Application and if they consider the proposed Orders to be “fair” they will make the Orders. This process can take a few weeks to be completed.
Financial Agreements are often referred to as “Binding Financial Agreements” or “BFA’s. these are essentially, a private contract between a separating couple which formalises their agreement regarding financial matters.
A Financial Agreement does not need to be approved by the Court. It is for this reason that there are strict legislative requirements associated with Financial Agreements and they must be drafted with care, by a Family Lawyer.
Each party must have obtained independent legal advice in order for the Financial Agreement to be considered binding. The Financial Agreement must contain a signed Certificate of Independent Legal Advice from both parties’ Solicitors.
The advantage of entering into a Financial Agreement, is that the parties can agree to terms that the Court may not consider to be “fair”.
In summary, it is risky to rely on your DIY Separation Agreement. Obtaining the assistance of a Family Lawyer to document your separation agreement is essential when navigating the complex Family Law jurisdiction. A Family Lawyer can help to make sure both parties’ intentions are acknowledged, and that the final agreement is clear, and most importantly, enforceable.