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My ex and I separated last year, with everything between us being very amicable. I have always been the higher earner.

We both have recently agreed that I would buy out my ex's share of the family home, which is where I still live (I have been paying the mortgage repayments and all other related expenses for the property. On applying for finance, the bank required a binding financial agreement between us. I would assume that this was to make sure that there are no sudden nasties later on.

Both of us agreed that the only thing we wanted to settle on with our separation was her share of the house, which is half of the value of the house less the remaining mortgage, forgoing a share of the value of my superannuation (for clarification, the agreement equates to a 54%/46% split of total assets, which effectively consist of the house and combined super). She went to a solicitor to get this drawn up on our behalf, who strenuously advised against such an agreement. We are both very comfortable with this decision, and said that yes, this is what we want.

The solicitor stated that they would work directly with her instructions, but "have a professional duty to warn you of their concerns". In the email they sent regarding the agreement, they had this particular paragraph:

We would also reserve the right to take our own professional advice as to our efforts on your behalf.

What does this mean? Are they implying that they would attempt to challenge our agreement, even though neither of us wants this to happen? I'm moderately sure that they are simply wanting to protect themselves professionally from any risk, but this really made me nervous.

So my question is, Can a solicitor (in Australia) challenge a binding separation agreement they don't agree with? We are both shaking our heads at the moment, we have an excellent relationship with shared custody of our children and neither of us wants this to happen.

  • I think this is more that they have professional obligation to protect you even from yourselves. If they advise against an action and you take it anyway, despite acknowledging it goes against advice, that might or might not protect them from your potential future claims of malpractice or breach of care, etc. But as IANAozL, I would say: ask them. – Nij Sep 30 '16 at 8:55
  • We're both very aware of the implications of the agreement, and have made it as consenting adults. Neither of us want to put the other into any sort of hardship. I feel they are just putting their concerns in writing so they can say that they told us. – user3358344 Sep 30 '16 at 9:00
  • Indeed. But even saying and proving "I told you so" if it goes bad, may not be enough to protect them from the fact they didn't protect you, even though you went consciously and deliberately against their advice. – Nij Sep 30 '16 at 9:12
  • Yes, I do understand. I guess that then comes back to my original question of if they can challenge our agreement to nullify it. The stupid thing is that we only really needed it to get finance so I could pay out her share of the house, so that she can buy a house...! I'd assume that even if we'd sold this one to buy a different house, any financial institution would still request the agreement given that we are separated. – user3358344 Sep 30 '16 at 9:16
  • Well, on what grounds? They aren't a party to the contract, just a means of writing it properly. So far as the agreement itself is concerned, once it's been made and you've signed, the lawyer may as well not exist. – Nij Sep 30 '16 at 10:12
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The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong.

"We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off.

Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it.

(Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right).

  • It's also possible (though perhaps less likely) that there's some aspect of the agreement that's detrimental to both parties. – phoog Sep 30 '16 at 16:55
  • @phoog I would say that the detriment is the possibility of the agreement being rejected by the courts. – user3358344 Sep 30 '16 at 19:55
  • I've accepted the answer. Our issue was a misunderstanding of the intent of the document, being the scope to which it applied. We will be asking the solicitor to draw up the agreement to additionally prescribe a significant proportion of my superannuation (approximately a third) will be paid into her fund, which should resolve the inequality and the concerns raised by the solicitor (which I actually agree with as well). Thank you for your input. – user3358344 Sep 30 '16 at 20:50
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The solicitor can't. The Family Court judge can - a binding separation agreement must be lodged with the Family Court. They will review it and, if the terms are significantly different from what the law would give, reject it.

If her solicitor is raising these concerns it's quite likely that the split is not equitable. Check with your own solicitor - you may need to give her more notwithstanding your agreement.

  • Thanks for your answer. It's actually a "Binding Financial Agreement" (sorry, got the name wrong), does that also need to be lodged with the Family Court? – user3358344 Sep 30 '16 at 12:00
  • @user3358344 DaleM's use of the phrase "her solicitor" brings up an interesting issue: you said that she approached the solicitor to draw up the agreement "for us." But does is solicitor working for both of you or for her? Normally, a divorce or separation is an "adversarial" situation, even if amicable, in which a lawyer has one party's interests to consider. In such a case, you should have two solicitors, as DaleM implies. The idea that you two would personally negotiate an agreement and then have a single solicitor draw it up runs counter to the basic nature of the system. – phoog Sep 30 '16 at 16:59
  • @phoog We got caught completely out with this, we had simply thought it was originally going to be an agreement of how much I would need to pay her for the house. But when she went to the solicitor, they told her that it was much, much more than that. So we have been floundering and trying to catch up. – user3358344 Sep 30 '16 at 19:57

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