01 April 2016
Hello
Can the financial agreement under section 90D of the Family Law Act 1975 be signed without independent legal advice?
Can the respondent sign an affidavit of waiver of legal advice instead?
Thank you.
Thanks for your question.
An affidavit of waiver does not satisfy the requirement that in order for a financial agreement to be binding, before signing, each spouse party must be provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement.
Section 90G(1A) allows the court to make an order that an agreement is binding where either spouse did not receive independent advice, but only when satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement.
See section 90G of the Family Law Act and the commentary in our Family Law - Financial Agreements publication.
Regards
Mentor
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