Engaging the services of a lawyer to draft a separation agreement can indeed be costly, however, reducing the time a lawyer spends on your matter can significantly lower those costs. An increasing number of Australians are Using a Separation Agreement Template in Australia to minimise the expense of property settlement.
To ensure the legal validity of a DIY separation agreement there are specific steps the couple should take. While involving independent lawyers is necessary, their role can be minimised, making the process less costly and less combative.
Who Can Use a DIY Separation Agreement?
Almost anyone in or separating from a relationship can create a financial agreement with their de facto partner or spouse. You can make these financial agreements before a marriage (something you may have heard called a “prenuptial agreement” or “prenup”). They can also be created during the relationship or after a separation.
Utilising a DIY Separation Agreement Template simplifies the process of drafting the contract. Templates provide clear guidance on the necessary components and wording, making it easier to create an accurate and comprehensive agreement.
If you choose to use a template, check if Australian lawyers drafted it; templates from other countries often fail to comply with Australian law, and cannot be relied on to protect your financial future.
How Do I Create a Binding Financial Agreement?
While you can use a template for Creating a DIY Separation Agreement in Australia, but it only becomes binding after you have taken very specific steps:
- Both parties to the agreement must seek advice from independent lawyers.
- You cannot use the same lawyer as the other party. The advice does not necessarily require face-to-face meetings, with emails and phone calls being enough. This is especially helpful for parties who are unable to access nearby services.
- The lawyer must be registered as a practitioner in Australia.
- The lawyer will review the agreement draft and advise you on what advantages and disadvantages you may have under this agreement. After giving this advice, they will provide you with a legal practitioner’s statement (certificate).
- Both parties must provide copies of their certificates to each other and include them in the agreement.
- Only then may the separation agreement be signed.
If an agreement is changed after receiving your certificates, you must repeat this process for it to remain binding.
RP Emery offers a legal review package, which includes access to independent lawyers for both parties. These lawyers can also help you make any minor changes necessary to ensure the agreement complies with the Family Law Act.
Can I Use My Family Lawyer for Independent Advice?
Using a trusted legal advisor is always advisable, however it’s also important to choose a practitioner with experience in family law matters rather than one with expertise in commercial property or wills and estate issues.
Family law specialists have the specific expertise and knowledge required to navigate the complexities of the Family Law Act. They can offer valuable guidance regarding your rights along with determining a fair and equitable division of property in accordance with the law. Their specialised knowledge ensures your agreement is enforceable and that you receive accurate and informed advice tailored to your specific needs.
Can a Separation Agreement Be Voided?
Yes, the Family Law Act provides specific guidelines and procedures to ensure the binding nature of a financial separation agreement and it sets out the circumstances in which the court may set aside such an agreement.
Sections 90G of the Act for married couples and section 90UJ for de facto couples set out the procedures that must be followed to ensure a financial separation agreement is binding.
Section 90K (1) (b) and section 90UM (1) (b) allow the court to make an order setting aside a financial agreement if the agreement is found to be void, voidable or unenforceable
Does a Separation Agreement Have to Be Filed in Court?
No, there is no specific repository for registering a financial separation agreement. In fact, the primary purpose of a Binding Financial Agreement is to exclude the jurisdiction of the Family Court and allow the parties to settle their financial issues privately without the court’s intervention.
