No, your solicitor should only explain the effect of your Separation Agreement. And sign the Certificate saying they explained this to you.
If a separation agreement is already entered into, this will be considered a settled agreement subject to your understanding of your rights and obligations. It is a legal requirement of the family law legislation in Australia that any agreement made between two former partners must be explained and understood by each partner and a certificate to this effect be signed by independent solicitors.
This is a standard process which is required to ensure partners are not coerced into entering unfair agreements and also to ensure one partner cannot go back to court to seek a more favorable arrangement later on.
As this is a standard legal requirement, a solicitor cannot require their own version of the agreement to be drafted. In addition, if they drafted your agreement, it would not match your partner’s agreement and your partner’s solicitor would have to review it in any event.
Before going to any solicitor, it is recommended that both partners attempt to agree as much as possible with respect to their financial settlement and enter into an agreement that outlines this. By doing this, you will not only save the substantial costs of a solicitor taking the time to draft your agreement and communicate with your partner’s solicitor but will also save on a number of other costs as well as having added benefits.
For example, if real property is transferred between you and your partner after you have settled and finalized your financial separation agreement, there is no stamp duty or capital gains tax on any property transferred between you. This can represent substantial cost savings for both parties.
Mutually agreed Separation Agreements work out better
Further, you both will likely be more satisfied with an outcome that you have reached between you rather than through a solicitor or through the court process as you may have more control over the outcome. If you and your partner cannot resolve your separation agreement and require the matter to be determined by the court process, it will be time consuming and more costly.
In addition, as the outcome will be determined by the courts, it may not be one you are happy with and is not one you or your former spouse can control. If the matter does have to go to court, it is likely that the court will require the parties to attend mediation to try to further settle their asset separation. When an agreement is finally reached, whether during mediation or with the intervention of the court, it will be in the public forum unlike when you finalize your own agreement which remains private and confidential.
It is not only financial issues that can be finalized by your separation agreement but also matters related to child custody and spousal maintenance.
In summary, when you enter into a separation agreement with your former spouse, you both save substantial time, money and can avoid attending court, as well as keeping your settlement private and out of the public domain.
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