Separating and the real need for independent legal advice …

When couples separate there may be issues around the division of their assets.  If they have “lived together as a couple” for three years or more, the default position is that all property attributable to the relationship is to be divided in equal shares.

Claims to enforce this can be made up to three years after the couple separates (and in some cases more!).  For peace of mind and certainty, most couples decide to enter into a separation agreement.

A separation agreement in a lot of ways is similar to a contracting out agreement (or “pre-nup”) but is entered ­at the end of the relationship.  Its key purpose is to provide certainty around the division of property so that the parties can move forward without concern that a claim may be made against their assets down the track.

A separation agreement isn’t 100% untouchable, and in some limited circumstances the courts may be able to reconsider the property division.  The threshold to do this is high, and the courts generally prefer not to meddle with these agreements unless absolutely necessary.

In one case, the husband argued that a separation agreement signed four years earlier should be set aside and the division of property revisited.  One of his arguments was that he had received inadequate legal advice when he signed the agreement.

One of the formal requirements of a separation agreement is that each party must have independent legal advice before signing the agreement.  If this hasn’t happened, the agreement is presumed to be void.  The court considered evidence put forward and disagreed with the husband.  It found that it was clear that the husband was aware of the risks he took on by signing the agreement and that his lawyer “had done his bit to bring that home”.

Although the husband was not successful in this argument, the case clearly signals the importance of independent legal advice when entering a separation agreement.

Without independent legal advice, a separation agreement challenged (possibly even years down the track!) will not be valid.  You may also never quite know exactly what you were entitled to …