If we separate or divorce, can’t we just write down what we want and sign it?

Posted on 24 June 2011

Breaking up with your spouse or partner can be one of the hardest events in your life and when it happens, most people just want the pain and situation over and done with. We are often asked “If we have reached and agreement, do we need a lawyer? Can’t we just write down the agreement and sign it?

While that might sound like the most convenient option, it’s not the best idea to entrust the division of your assets and/or the parenting (custody) of your children to a piece of paper you have both signed. The sad reality is that most breakdowns of relationships result from significant irresolvable issues between the parties to the relationship; unless that ‘piece of paper’ is legally binding, one or both of you are probably not going to stick to it if your agreement becomes inconvenient. ‘Binding’ means that it becomes an order of the Family Court, compliance with which can be enforced by either party if necessary.

So if you’ve managed to reach an agreement with your ex, how do you make it binding?

The two most common ways of formalising an agreement so that it is legally binding are:

  1. Consent Orders – you lodge your agreement with the Court and it is turned into court orders. Consent Orders are handy when you have children and you want to deal with both parenting (custody) arrangements and the division of your property.
  2. Binding Financial Agreement - this is where you both enter into a formal private contract with your ex detailing the Agreement in a specific form. Financial Agreements are handy when your agreement is ‘out of the box’ and you are not dividing your assets immediately. The downside is that Financial Agreements can only deal with just that, your financial and property arrangements. 

It is very important, if possible, to make sure that you’ve reached a real agreement with your ex before trying to formalise it. Otherwise, you may find yourself spending significant amounts of money (and precious time) negotiating issues that you may not have thought about until you obtained legal advice. Or worse, you may find yourself in a binding arrangement which is completely unsuitable.

We recommend that if you have reached an agreement, contact a lawyer to discuss the agreement at an initial consultation to make sure that all the issues have been dealt with; then you can proceed with obtaining legal assistance to make sure that the agreement is legally binding.

Stay tuned to our next blog where we will give you our top 5 tips to help you through your separation or divorce.