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Wed, 21st Jun 2017

Do I Need A separation Agreement?

When a couple separate amicably, there may be a reluctance to involve Lawyers.   The couple may have worked out a division of assets, and believe everything is "sorted out" and that getting lawyers just makes for unnecessary cost.   However, there are many risks in leaving things like this such as:

Debts -  have you been released from all necessary debts, including any personal guarantees you may have given for trust or business transactions?  What if you are pursued in years to come for a debt you thought your former partner or spouse was responsible for?

Death - without a formal agreement in place, your partner or spouse may bring a claim against your estate which will cause upset for your grieving family. Or, your partner or spouse's estate may bring a claim against you.  Your informal agreement does not prevent this.

Further claims - you think everything is worked out, however a few years down the track, you receive notice that your partner or spouse seeks more from you or stakes a claim in an asset you thought was your separate property.  The informal agreement you reached earlier has no standing. Wouldn't you like to know that all matters have been addressed and settled now, rather than having something hanging over you?

Has all property been included?   Do you know what is separate property and what is relationship property?  Have you agreed a division of assets knowing legally what constitutes relationship property? What if you have missed out on your fair share of an asset because you were not legally advised that it was relationship property?

Fair division?  Whilst the starting point is an equal division of relationship property there are circumstances where the division is not 50/50.  What if your circumstances would mean that you keep a greater share of the property?  What if you receive notice a few years later that despite the 50/50 informal division, your partner wants more and is going to drag you through Court to get it? Wouldn't it be better to have had this all considered now and a legally binding agreement entered into which prevents any such claims in the future?

To be a binding agreement, the agreement needs to comply with the formalities of the Property (Relationships) Act 1976 which includes that it is in writing, and also each party must have independent legal advice as to the terms and effects of the agreement.

Come and see Fiona Murray or Graham Day at Law North to discuss all your relationship property agreement needs.  Ph: 09 4077 099

  • Posted By: Fiona Murray on Wed, 21st Jun 2017 @ 09:56:34

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