Before a financial agreement becomes legally binding, both parties are required by law to obtain independent legal advice. Why is this so?
Let me explain.
Under section 90G for married couples, or section 90UJ for de facto couples, parties to a financial agreement must receive independent legal advice before they execute their agreement. Independent meaning you cannot use the same lawyer.
This is to ensure that the parties understand:
a) the advantages and disadvantages of making the agreement; and
b) what rights you give up, including the right to have a court decide on matters that are dealt with in the agreement.
So by getting proper legal advice, independent of the other party, the Act makes it near impossible to argue that you didn’t know what you were signing. The lawyers will also make inquiry that the parties are entering the agreement of their own free will and that neither is under pressure or duress to sign the agreement.
How do we get the legal advice?
You basically have two options when it comes to obtaining the legal advice:-
- you can consult your own lawyers (one for each party and they must be independent of each other); or
- you can take advantage of our fixed, low fee financial agreement Review Service – in most cases it’s only $695 per party.
How the Review Service works
- Complete your financial agreement using the Kit.
- Return your completed agreement to us by email.
- We will review your agreement and send you a payment link to purchase the Review Service at the standard set fee, if it applies to your Agreement. With the standard fixed fee comes a fixed level of service. The standard fee will not apply if an agreement is overly complex, incomplete or requires drafting by a solicitor. Complicating matters may include intermingled business affairs which need to be dissected, or the involvement of extensive companies and/or trusts. In such cases, additional fees may apply, and if so, we will provide you with a fixed fee quote, before you decide whether to proceed. In our experience, the set fee applies to most agreements.
- Once payment is made, we will allocate you an independent lawyer and notify you of your lawyer’s details by email. We will provide your lawyer with your completed Financial Agreement and your preferred contact details to enable them to complete the service.
- We encourage you to phone your lawyer at your earliest convenience to arrange a time for your telephone conference, at which you will review your agreement with your solicitor and receive your legal advice.
- After receiving your advice, your lawyer will email you a letter confirming their legal advice. They will request that you acknowledge (by signing and returning the letter to them) that you have received your advice, have understood the advice and have no further questions. If you do have questions, you need to address these with your solicitor before signing your Acknowledgement.
- When they receive your signed Acknowledgement, your solicitor will post you hard copies of your:-
- a) final agreement, to be signed by you and the other party; and
- b) your Solicitor’s Certificate.
- When you receive your documents, attach the signed Solicitor’s Certificates of both parties to one copy of the final agreement. You should both initial your Solicitor’s Certificates, and sign your financial agreement in the presence of a witness. You will receive more detailed instructions on signing your agreement in your Kit and from your solicitors.
- The original signed agreement should be held by one party, and the other party MUST be given a FULL COPY of the Agreement, including copies of both of the Solicitor’s Certificates.
- Store your agreement in a safe place. You do not need to file a copy with the Court or any other organisation.