The Role of Family Lawyers in Separation Agreements

A family lawyer plays a vital role in drafting, negotiating, and finalising separation agreements to ensure a fair and legally binding outcome. 

Going through a separation is often one of the most emotionally taxing experiences in life. It can be an overwhelming process involving complex emotional, financial, and legal considerations.

A separation agreement is a legally binding document that outlines how a separating couple will divide their assets, handle parenting arrangements, and manage financial responsibilities moving forward.

Navigating this legal terrain without proper guidance can lead to confusion and unfair outcomes.

That is where a lawyer for a separation agreement becomes invaluable. 

In this article, we explore the crucial role that family lawyers play in creating and finalising separation agreements, whether in Queensland or elsewhere in Australia, and why seeking legal advice for a separation is essential for protecting your rights and interests. 

What Is a Separation Agreement? 

A separation agreement is a formal, written agreement between two people who have decided to end their marriage or de facto relationship. It outlines key terms including: 

• Property and asset division; 

• Superannuation splitting; 

• Spousal maintenance; 

• Parenting plans / arrangements, if there are children involved; 

• Child support. 

While informal arrangements can sometimes work temporarily, they are not legally enforceable and can lead to future disputes. A formal separation agreement, often called a Binding Financial Agreement (BFA) or consent orders, offers legal certainty and enforceability.   

Why Legal Advice Is Essential in a Separation 

Many people are unsure whether they need legal help when separating. Some believe that if the separation is amicable, a lawyer isn't necessary.

However, even in the most cooperative circumstances, it's vital to understand your legal rights and obligations. There are several reasons why obtaining legal advice for a separation is a wise step: 

1. Understanding Entitlements: A family lawyer can explain your entitlements under the Family Law Act. This may help you from being left under provided for or from being subject to undue influence or pressure from exerted by your prior partner. 

2. Avoiding Mistakes: Legal documents must be drafted and executed properly to be enforceable. There are a range specific requirements which much be included and accounted for in a separation agreement, which if left out will result in an unenforceable agreement.  

3. Preventing Future Disputes: A lawyer can help structure the agreement in a way that minimises ambiguity and potential conflicts. Among other aspets, this may include how disputes are handled and how overseas assets are to be dealt with.  

4. Meeting Legal Requirements: Certain agreements, such as Binding Financial Agreements, require both parties to receive independent legal advice for the agreement to be valid. Accordingly, engagement with a lawyer for that purpose is essential.  

How Family Lawyers Assist in Creating Separation Agreements 

A family lawyer in QLD provides a wide range of services to assist clients in drafting, negotiating, and formalising separation agreements. Here's how they help at each stage: 

1. Initial Consultation and Legal Advice 

The process typically starts with an initial consultation. The lawyer listens to your situation, gathers information, and explains your rights and obligations. They also help identify any urgent issues, such as freezing joint accounts or obtaining interim parenting orders. 

2. Asset and Liability Disclosure 

Both parties must fully disclose their financial positions. This includes income, property, superannuation, and liabilities. Your lawyer will assist you in gathering and presenting this information and ensure that the other party does the same.

Full disclosure is a legal requirement and ensures that any agreement is fair and legally binding. 

3. Negotiation and Mediation 

If there is disagreement between parties, your lawyer can negotiate on your behalf or help you prepare for mediation. They aim to reach a mutually acceptable outcome without going to court. Legal representation ensures your voice is heard and your rights are respected during negotiations.

As described earlier, legal representation can also help ensure that undue influence is removed or limited, so far as it able in the circumstances.  

In situations involving high levels of conflict, domestic violence, or complex asset structures, the role of a lawyer becomes even more critical. They can: 

• Apply for protection orders where necessary; 

• Work with forensic accountants to value businesses or hidden assets; or 

• Represent you in court if an amicable agreement cannot be reached. 

A skilled family lawyer in QLD ensures that vulnerable parties are protected and that legal processes are followed meticulously. 

4. Drafting the Agreement 

Once terms are agreed upon, your lawyer will draft a comprehensive separation agreement. This document must be clear, precise, and legally sound. It needs to cover all aspects of your separation to avoid future legal complications.

Depending on your circumstances, your lawyer may advise you to pursue either: 

• Binding Financial Agreement (BFA): A private agreement that is legally enforceable if both parties receive independent legal advice. 

• Consent Orders: Filed with the Family Court and reviewed by a Registrar to ensure they are fair and reasonable. 

5. Independent Legal Advice 

To make a BFA legally binding, both parties must obtain independent legal advice. This ensures that both parties understand the effect of the agreement and are entering into it voluntarily.

Your family lawyer will provide this advice and issue a certificate of advice, which is attached to the final agreement. 

6. Finalising and Registering the Agreement 

Once the agreement is signed and advice certificates are attached, your lawyer can help register the agreement with the court if applicable. For example, Consent Orders must be filed with the Federal Circuit and Family Court of Australia. 

Common Mistakes to Avoid  

Choosing to go through separation without legal assistance may lead some of the below common pitfalls: 

• Unenforceable Agreements: Informal agreements often lack the necessary legal backing.   

• Unfair Settlements: You may unknowingly agree to terms that disadvantage you. 

• Lack of Disclosure: If your ex-partner fails to disclose assets, you could lose entitlements. 

• Incomplete Documentation: Agreements that miss key details may cause future conflict. 

While the above are only some of the issues that may arise, avoiding these mistakes is a key reason to work with a lawyer for a separation agreement. It could be very detrimental to rely on an informal agreement regardless of whether the parties are or appear amicable at the time.

Circumstances change and life evolves, and it is important to ensure that the agreement is enforceable so that it can be relied on into the future.  

Why Choose a Queensland Family Lawyer? 

Retaining a family lawyer in QLD or elsewhere in Australia ensures your legal representation is familiar with local laws, courts, and procedures.

If your assets are largely held in Queensland then it is both convenient and prudent to retain a family lawyer in Qld as they also understand Queensland laws pertaining to relevant assets, particularly property laws. 

The separation process is challenging, but you don’t have to go through it alone. A qualified family lawyer can help you understand your options, secure your future, and provide peace of mind during an otherwise difficult time.

Whether your separation is amicable or contentious, obtaining professional legal advice is crucial to achieving a fair and lasting resolution. The right lawyer will act as your advocate, advisor, and legal drafter, ensuring the final agreement reflects your best interests. 

Need Help with a Separation Agreement? 

If you're going through a separation and need trustworthy legal support, the experienced team at Drakos & Company Solicitors is here to help. Our skilled family lawyers in Brisbane can help create and finalise separation agreements that protect your rights and secure your future.

Contact Drakos & Company Solicitors today for confidential legal advice on your separation.