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About this separation agreement
Separation agreement is legally binding in Australia. It is also known as binding financial agreement. It is only enforceable if the both parties have:
- signed the document; and
- obtained the independent legal advice.
It is mandatory for the both parties to obtain legal advice about the effect of the agreement and give the copy of the certificate of advice to each other in order to fulfil the requirement of the section 90G of the Family Law Act 1975.
When a relationship ends and partners go their own ways, there can be a great deal of uncertainty as to who will pay previously joint bills, how possessions and assets will be split, and who will look after the children.
For married couples, a separation agreement like this one (sometimes called a deed of separation) provides certainty as to how each person will live while a divorce is being settled.
It is also suitable for:
- couples who are separating having not married, and for
- couples looking to end a civil partnership or same sex union.
This separation agreement provides both parties with a degree of protection and certainty in what would otherwise be a very uncertain time.
Why use this separation agreement
There are a number of reasons to use a written deed of separation:
Prevent future arguments
A separation agreement is a written record of what you agreed between yourselves. After signing the document, it is more difficult for one person to argue that he or she did not agree to something.
Save time and money on solicitors
Solicitors can be good negotiators and can offer good advice on entitlements, but there is nothing in a separation agreement that requires legal knowledge or a solicitor. This document achieves much the same as a solicitor would do for you after a few meetings. Unless you want a solicitor for another reason, you can save time and money by completing this document yourself instead of asking him or her to do it for you at a high hourly cost.
It could form the basis of a consent order in divorce
If you can demonstrate that the agreement has worked well for a period of time, a judge could let it form the basis of a consent order in divorce proceedings.
Keep the relationship amicable
Court proceedings inevitably become acrimonious. There is a much greater chance of keeping your future relationship friendly (and agreeing a split that suits both parties, keeping joint friends and making access to children easier) if you can work out together the details of the separation before you reach a court. A deed of separation can make divorce process easier, faster and less stressful because many of the difficult things have been agreed already.
The law on separation agreements
Separation agreements (also known as binding financial agreements) are legally enforceable in Australia under the Family Law Act 1975 subject to the conditions that an agreement must be in written form and both parties must have obtained independent legal advice from a solicitor. In accordance with the family Law Act 1975, parties can enter into separation agreement during marriage under s 90C or if you are a De facto couple (opposite or same-sex) and not married you can still make a binding financial agreement under s90UD. This agreement is not suitable for defacto couples who live in Western Australia.
The Family Law Act 1975 Sect 49 defines separation as:
- The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
- The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other."
Note that arrangements for children have no legal standing. A court will take no account of what you have agreed but will consider afresh the interest of each child. However, if a satisfactory arrangement is in place, it is likely that the court will order that it remain undisturbed. It is always worth making arrangements for your children in order to promote a secure and firm framework for their lives.
Completing your separation agreement
The agreement is straightforward and easy to complete. You don't need to involve solicitors or go to court.
This deed of separation provides for detailed disclosure, but we do not try to anticipate every asset you may have. You must be very thorough in your disclosure.
Next, you should discuss what you want from the separation. You may need to instruct experts (such as an accountant and/or a surveyor) to value financial and physical joint assets.
This template provides for you to set down your exact arrangements for your children. Although not binding on the Court, your agreement together will reduce the risk of future disagreement, as will all other aspects of your lives.
Separation agreement contents
The document includes paragraphs that cover:
- Details of the parties, including the separation date
- Details of any children, if applicable
- Arrangements for the disposal of the house by sale, or
- An option for one party to keep the matrimonial home and be bought out by the other
- Payment of outgoings such as bills and other expenses – who will pay
- Division of other possessions and household property
- Assignment of insurance policies (you may additionally need: Deed of assignment: life insurance policy or endowment policy)
- Division of business property
- Maintenance payments for the spouse and any children
- Lump sum payments
- Conclusion of joint accounts
- Option for the parties to agree to petition for a divorce after two years separation
- Child maintenance arrangements
- Parental rights arrangements
This document was written by a solicitor for Net Lawman. It complies with current Australian law.
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