How to write a separation agreement in Australia
This article answers the question: How to do a separation agreement in Australia? We explain your options for writing a separation or financial agreement in Australia and getting the legal advice that will make it legally binding.
Let’s start with the basics.
What is a Separation Agreement?
A separation agreement (more correctly known as a financial agreement), is a contract made between a couple (married or de facto) who wish to document how their financial property should be divided.
In Australia, the correct term for this type of agreement is a “Binding Financial Agreement” or BFA.
You can make a BFA before, during or after marriage. In the case of a separation – it’s an agreement made after marriage under section 90C of the Family Law Act 1975. In this article, the terms separation agreement, financial agreement and BFA are interchangeable.
You can also write a separation agreement for de facto or divorced couples, and the following information applies to those situations as well. See Separation and Property Settlement 101
Can you write your own Separation Agreement?
It is possible, but there are certain requirements that must be met if you expect the agreement to be Binding.
If you want an agreement you can rely on, one that will protect your interests, then it must contain specific clauses and cover issues you may not have considered.
In addition, you and your ex-partner must receive legal advice before you sign the document, otherwise it will have no Binding effect. See section 90G of the Family Law Act 1975.
How to write a separation agreement without a lawyer.
As mentioned above, you can write the agreement, but how would you know what to include and how to express your wishes succinctly, unless you have extensive experience drafting prenups?
In any case, unless you get legal advice before you sign the document, it will be worthless and inadmissible in court.
However…
One way to write a separation agreement yourself without a lawyer is to use a high-quality Binding Financial Agreement kit from RP Emery & Associates.
The kit contains instructions and a BFA Planner which covers all the standard issues any separation agreement should cover. Think of it like the basic framework to create your own agreement, which you tailor to your specific needs.
Unlike documents from other counties, the RP Emery kit is drafted specifically for Australia by Australian legal professionals.
Once you have a draft agreement you can use our Fixed Price Legal Review Service to make your separation agreeement binding.
Get Started with a Separation Agreement Kit- Just $49How to arrange a separation agreement ?
Traditionally, you would engage a lawyer to draft the agreement for you. This involves several meetings to determine what you want the agreement to achieve and as lawyers charge by the hour it is easy to see how the costs escalate quite rapidly.
Alternatively, you can start with a template kit and do more of the work yourself saving you considerable time and money, but remember, you will still need legal advice before you sign, to ensure your agreement is Binding.
What are the benefits of using a Kit vs a Lawyer
When you visit a lawyer for the first time, you can expect a first meeting to flesh out your needs. From that meeting you’ll be required to provide certain information such as;
- Who are the parties to the agreement? You will provide full names and dates of birth.
- When did you separate?
- Are there any children of the relationship (names and dates of birth)?
- Do you hold any controlling interest in a company trust or SMSF?
- List each party’s current assets and liabilities
Once that information has been provided then a document will be prepared (generally from a template the firm has used previously) and another meeting will be scheduled to review the draft agreement. You may need to provide additional info and there may be several emails back and forth. All the time the metre is running at the going hourly rate. The more meetings and emails the higher the cost.
Once a document has been prepared you will provide a copy to your fiancé who must then seek his/her own legal advice. It’s a time consuming and costly process.
Avoid all the hassle
All that to-ing and fro-ing can be avoided if you use a template kit.
You will still need to provide all that information but instead of paying a lawyer to enter the data into their template, you and your partner can enter the information straight into the BFA Planner yourself.
How the Process works
This section explains how our process works in detail.
A Look at What We Actually Ask
No dense legal clauses to wade through here – just plain questions about your situation, with enough detail to meet the law’s disclosure requirements and no more. Below is a look at a few sample questions from the questionnaire, so you can see how the Planner is set out.
It doesn’t matter what kind of financial agreement you need or which state you live in – the planner forms for foundation of the correct financial agreement for your situation.
Satisfaction Guaranteed – Our Promise to You
Satisfaction Guaranteed – Our Promise to You
If for any reason you are not completely satisfied with your purchase or our service, please phone our office on 1800 608 088 within seven (7) days of purchase and we will rectify the situation, issue a refund, or offer a credit towards future purchases.
Will a template agreement provide the same level of protection?
It’s worth noting that most separation agreements say much the same thing.
Generally speaking, the couple have property (houses/mortgages, savings, shares, cars, superannuation etc) they wish to divide. This is the basic premise of our template agreement.
At the end of the day, the lawyer who provides your legal advice is responsible for advising you about the effect of the agreement and any deficiencies in that document. So, whether you start with a template or not, the level of protection and the quality of your final agreement is ultimately determined by the lawyer who provides your legal advice – which is why we have chosen our lawyers very carefully.
We work with you
In a nutshell – we work with you from start to finish. From the moment you download your agreement to the final signature. We know our stuff, our systems are finely tuned and our customers love us for it!
“The service provided by your company was second to none! The prenuptial contract process was seamless with all the details that I wanted plus more. The service, support, the contract, examples contract and everything that came with it was faultless! I highly recommend your company and will with no hesitation use your service again! Well Done.”
Nathan Waterstone
Oakleigh Vic
A Word of Warning
If you do decide to download a document from the internet, only a document drafted to comply with Australia’s Family Law Act and reviewed by an Australian lawyer will protect you. If you can’t speak in person to the staff of the company making the offer. Proceed with caution.
On the other hand if you want to speak with us, all you have to do is pick up the phone and call 1800 608 088.
Get Started with a Separation Agreement Kit- Just $49
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