Not every separated couple engages family lawyers. There are many reasons for this, but primarily this includes:
- The separated couple are amicable, and “lawyering up” sends a message almost akin to a declaration of war;
- The parties have other professional advisers to assist in the process, such as accountants or commercial or property lawyers, and consider there is little benefit of involving yet another lawyer into the process;
- It is not a requirement to be represented, and therefore, to save money, or for other reasons, the parties decide to “do it yourself”.
All of these are legitimate and understandable reasons for parties not to engage a family lawyer. However, there are risks in not doing so, which can be costly.
Not properly formalising agreements
Firstly, any agreement reached should be properly formalised.
Doing so, however, is not a “one size fits all” approach. There are a number of ways agreements can be formalised, potentially involving multiple settlement documents.
A family lawyer will be able to advise which method of formalising an agreement is most suited to the particular situation.
Without an agreement being formalised properly, parties are at risk of future claims, or their agreements being deemed invalid or not enforceable.
Agreeing to unfair terms
There are a wide range of assumptions in the public arena about entitlements or rights in family law, both in relation to financial and parenting matters. These assumptions are often misinformed and incorrect.
Family law is complex and constantly changing, and what may have been the approach 10, or even 5, years ago, may not be applicable today.
Parties should therefore obtain current and specialised advice in relation to their entitlements before entering into any agreement, to avoid agreeing to terms which may be unfavourable, and potentially based on a misunderstanding of rights and entitlements in accordance with the law, as it presently stands.
There may often be unintended consequences of entering into an agreement if the agreement is not properly formalised or if specialised advice about the proposed agreement has not been first obtained.
A specialised family lawyer will be alive to the appropriate way to prepare the agreement to ensure the agreement reflects the intentions of the parties, and to ensure consideration is given to the potential implications of the agreement. These implications arise from, most commonly, transfers of property or one party taking over a family business. There are often tax consequences associated with implementing these aspects of an agreement.
Family lawyers will consult with a party’s accountant or commercial lawyer prior to any agreement being formalised, to ensure there are no surprises when it comes time to implement the terms of the agreement.
If you or your client are in the process of separating, it is important to seek legal advice from a specialised family lawyer to understand your entitlements and ensure that any agreement reached is properly formalised.
If you need assistance with your family law matter, please contact Josephine Sergi.