I’m separating – do I really need a lawyer?

Written by: Amy McCormick
Sep 22 2021

When a couple (married, civil union or de facto) separate there is a lot to organise. Often, the last thing people want to do is to see a lawyer to divide their relationship property but reaching an informal agreement between you may mean you miss out on understanding all of your entitlements, or understand your obligations.

The Property (Relationships) Act 1976 encourages parties to reach agreements without having to go to court. A one off meeting can set you up to reach your own agreement without the full service assistance of a lawyer.

However, if you want your agreement to be in writing (and often the bank will require this in order to refinance one party to pay out the other) there are very strict rules in regards to requirements that must be complied with for an agreement to be binding. For an agreement to be binding, it must be in writing and both parties must have had independent legal advice from their own lawyer before signing the agreement. The lawyers witnessing the agreement must provide a certificate that they have explained the effect and implications of the agreement to their client. If these formal requirements are not met, either party could seek to set the agreement aside in the future.

The starting presumption is that property will be shared equally where there is a qualifying relationship. There are exceptions such as for example where there are short relationships (under 3 years) or where an inheritance has been received by one party or the parties have children.

If there are trusts involved, the matter is less straightforward as trust property is not relationship property. If there is a trust involved we recommend you see us for advice as the circumstances vary from couple to couple.

Haigh Lyon are able to help you through all stages of the separation process and are available to assist you to reach a fair and enforceable agreement with your former partner.