A step by step guide

to obtaining a

separation agreement

May 2017

By Matthew CarneyFamily Lawyer

Legal Disclaimer

This presentation is offered for general information

purposes only. It does not constitute specific legal

advice or opinion. You should not act or rely upon any

of the information contained within this seminar

without seeking the advice of a qualified solicitor who

specialises in the particular area of expertise and

jurisdiction that you require.

Introduction

A separation agreement (known as a binding

financial agreement (or BFA) under the Family

Law Act) is a legally binding document that

formalises your property settlement.

Introduction

As a separation agreement is legally binding, each

party must carefully consider their options and

decide what is in their best interest prior to signing it.

To assist separating couples, we have drafted the

following step by step guide to assist you in

understanding the process of obtaining a separation

agreement.

Step 1 – Initial Meeting With Lawyer

We recommend that, following separation, both

parties are independently advised by an

experienced family lawyer.

As a starting point, we recommend our:

First Step Package

Step 1 – Initial Meeting With Lawyer

At the initial meeting, you will have an appointment

with a family lawyer of your choice for up to two

hours where we will advise you about your situation,

the likely outcomes and what steps you should take,

it will be followed by a written report advising you of

the required next steps for you to consider.

If both parties are independently advised by an

experienced family lawyer it significantly increases

the prospects of a quick settlement.

Step 2 – Financial Disclosure

Each party must start the

process with full and frank

'Financial Disclosure'.

Each party has a duty of

disclosure that requires

parties to provide to each

other all information

relevant to the matter.

Step 2 – Financial Disclosure

This duty continues until the matter is finalised.

Each party is required to provide information to the

other all party about all sources of income, assets,

debts and other financial resources.

This applies whether the property, financial

resources and earnings are owned solely, as a

beneficiary (for example, the party's child or de

facto partner) or are held in corporations, trusts,

company or other such business structures.

Step 2 – Financial Disclosure

Each party should carefully consider the financial

information provided by the other party and

decide if any valuations are required.

Step 2 – Financial Disclosure

An experienced family lawyer will be able to give

you a full list of documents required and advise

you if valuations are required.

Step 3 – Negotiation

After full financial disclosure has been

exchanged, both party's lawyers will negotiate a

final outcome.

This may occur through the exchange of letters,

face to face meetings or mediation.

This process may take several days or may take

several months depending on the complexity of

the assets being divided.

Step 4 – Drafting

Once an agreement is

reached the lawyer will

draft the separation

agreement.

Both parties will review

the agreement and

negotiate the terms of

the separation

agreement.

Step 4 – Drafting

Online Forms & Templates

We have recently seen a rise in the availability of cheap online forms and templates available for download for a small fee (or for free), it is important that you do not use an online form or template.

Step 4 – Drafting

Online Forms & Templates Continued…

While these forms/templates may be appealing due to their low costs, they are rarely legally enforceable (notwithstanding their claims to the contrary) and do not meet the legal requirements.

Every relationship is different and you need a

specialised family lawyer to draft an agreement

relevant to your specific circumstances.

Step 5 – Obtain formal written advice

After the agreement is drafted (and during the

whole process) you should be advised by an

experienced family lawyer.

Once the agreement is drafted, however, both

parties must be independently represented by a

separate lawyer about the advantages and

disadvantages of signing the agreement and the

effect that the agreement has on the parties.

Step 5 – Obtain formal written advice

Both lawyers will independently provide a

certificate, certifying that this legal advice has been

provided.

If the 'Certificate of Independent Legal Advice' is

not provided, the agreement is not legally

binding, even if it has been signed by both

parties.

Step 6 – Signing

Once the agreement is agreed, drafted and both

parties have obtained independent legal advice,

both parties will sign the same agreement and

copies will be provided to both parties.

The original agreement will be stored in a lawyers'

safe custody room indefinitely so both parties can

obtain a further copy in the future if needed.

Summary

A separation agreement is a complex legal

document, the division of your assets after

separation occurs will likely be one of, if not the

biggest, financial decision of your life.

We recommend that all parties going through, or

considering, a separation obtain specialised family

law advice so that they are protected an obtain a

fair outcome during this difficult time.

Turnbull Hill Lawyers – Contact Us

If you have any further questions relating to

separation agreements & property settlements, or

you'd like to discuss a related matter, please call:

Matthew Carney on 1800 994 279 or email him.

He will endeavour to respond to your enquiry within

24 hours.

Need a Family Lawyer in NSW? Call Us

We service all of NSW

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