The importance of obtaining independent legal advice in family law matters

It is not unusual for our office to be asked the question when making an appointment if both parties can attend.  We are often told the separated parties are amicable and want to jointly engage with the one lawyer, to save on fees but also make sure that the lawyer doesn’t “create conflict” between the parties that have otherwise already agreed on how they will separate the assets.

Without exceptions, we will not see separated parties together as it is impossible to provide independent legal advice when both parties are present.

While it is appreciated that parties may have already agreed on how the assets are to be divided, we would not be doing our job properly if we did not provide advice on that agreement and whether it would be considered just and equitable having regard to the Family Law Act 1975 (“The Act”).

Where there are legislated rules about parties to an agreement receiving independent legal advice the risk to any party seeing the same lawyer is that the agreement in question could be overturned at some stage in the future.

In a recent decision of Bachman and Donahue in the Federal Circuit and Family Court of Australia (Division 1) a Binding Financial Agreement (“BFA”) entered into during a relationship was overturned upon separation because the judge determined that it was impossible to see that the wife had received Independent Legal Advice based on the facts of the case.

In this matter the solicitor who was engaged to prepare the BFA was actually a friend of the husbands who was initially engaged by him to draw up the document on behalf of both parties.  The husband and wife met the solicitor together to provide initial instructions regarding the document and what they wanted to achieve by it.  After the document was drawn up the solicitor met with both parties again and provided them jointly with advice regarding the document, including writing to them together.  The husband was then referred to a separate solicitor for independent legal advice.

In this matter the husband was of the view that he had entered into a BFA and as a result on separation his assets were protected.  Unfortunately, because the parties failed to act independently regarding the documentation of the agreement, this was not the case.

While people are often put out by our refusal to see separated parties together, we take this step to ensure that the legitimacy to any agreement cannot come into question.  It is not our desire to “move the goal posts” of the agreement or create conflict between parties that are amicable – it is our goal to ensure that any agreement is legally binding and cannot be overturned.

If you would like to ensure that any agreement reached at separation is legally binding contact one of our experienced Family Lawyers for an appointment.