Separation Agreement: Will My Solicitor Require His Own Version of Financial Separation Agreement?
If a separation agreement is already entered into, this will be considered a binding contract and a settled issue. It is a legal requirement of the family law legislation in Australia that any agreement made between two former partners must be explained and understood by each partner and a certificate to this effect be signed by independent solicitors. This is a standard process which is required to ensure partners are not coerced into entering unfair agreements, to ensure both partners understand the agreement and ensures one partner cannot go back to court to seek a more favorable arrangement later on on the basis of misunderstanding.As the legal certificate is a standard legal requirement, a solicitor cannot require their own version of the agreement to be used. In addition, if they did draft your agreement, it would not match your partner’s agreement and your partner’s solicitor would have to review it in any event.Before going to any solicitor, it is recommended that both partners attempt to agree as much as possible with respect to their financial settlement and enter into an agreement that outlines this. By doing this, you will not only save the substantial costs of a solicitor taking the time to draft your agreement and communicate with your partner’s solicitor but will also save on a number of other costs as well as having added benefits. For example, if real property is transferred between you and your partner after you have settled and finalized your financial separation agreement, there is no stamp duty or capital gains tax on any property transferred between you. This can represent substantial cost savings for both parties.Further, you both will likely be more satisfied with an outcome that you have reached between you rather than through a solicitor or through the court process as you have more control over the outcome. If you and your partner cannot resolve your separation agreement and require the matter to be determined by the court process, it will be time consuming and more costly. In addition, as the outcome will be determined by the courts, it may not be one you are happy with and is not one you or your former spouse can control. If the matter does have to go to court, it is likely that the court will first require you and your partner to attend mediation to try to further settle your asset separation. When an agreement is finally reached, whether during mediation or with the intervention of the court, it will be in the public forum unlike your own financial separation agreement which remains private and confidential.It is not only financial issues that can be finalized by your separation agreement but also matters related to child custody and spousal maintenance.The benefits of organizing and agreeing your own separation agreement with your former spouse are enormous and should be considered before you seek any formal arrangements through a solicitor.