Updated October 2026
CM Law’s Ultimate 50 List Separated Couples FAQ Number 17 What is the importance of legal advice in separation
Why legal advice matters during separation
Separation can involve emotional strain and difficult financial decisions. Legal advice helps you understand your rights, assess proposed arrangements and record an agreement that does what you intend. For couples in NSW, this includes property, debts, superannuation, maintenance and arrangements for children. Even when you agree with your partner, a document you prepare yourselves may leave important issues unresolved or fail to meet the requirements for a binding financial agreement, commonly called a BFA.
Getting advice early can help identify those problems before money changes hands or property is transferred. It also gives you a basis for negotiation, including whether consent orders or a financial agreement would suit your circumstances.
Understanding your rights and financial position
Property settlements are not automatically divided equally. The legal assessment considers assets and liabilities, each person’s contributions, and current and future circumstances. Contributions include homemaking and parenting, as well as income and financial contributions. The aim is an outcome that is just and equitable in the circumstances.
The family law property changes effective from 10 June 2025 clarified this framework and expressly recognise the economic effects of family violence where relevant. A lawyer can explain how these matters affect your position. Advice should also distinguish property settlement from divorce, parenting arrangements and child support, rather than assuming one document resolves everything.
Parenting arrangements require separate consideration of the children’s best interests. A parenting plan records agreed arrangements but is not legally enforceable in the same way as parenting orders. Knowing the difference helps parents choose an appropriate arrangement and avoid confusing financial negotiations with decisions about their children.
Christine on agreements couples prepare themselves
“Over 30 years, I’ve seen various clients who thought they could prepare an agreement with their partner and have the whole separation sorted. They had agreed on the main points, put something in writing and assumed that was enough.
“Then we look at the document and find assets they have overlooked, or parts of their finances that the agreement does not properly deal with. More importantly, some had no idea that each partner needed independent legal advice before signing a BFA. Having two signatures on the page does not, by itself, make it binding.
“My advice is to have the arrangement checked while you are working it out. Make sure you understand what is included, what remains unresolved and what you are giving up. It is much harder to face those questions after you thought everything was finished.”
Independent legal advice is a BFA requirement
Under sections 90G and 90UJ of the Family Law Act 1975, the usual binding requirements include each partner receiving independent legal advice before signing. That advice must address how the agreement affects their rights and the advantages and disadvantages of entering it at that time.
Each partner must receive their lawyer’s signed statement confirming the prescribed advice, and a copy must be given to the other partner or their lawyer. All parties must sign the agreement. Simply having a signature witnessed, using an online template or relying on your partner’s lawyer is not a substitute for your own independent advice.
Courts have a limited statutory power to uphold some agreements despite defects in the advice or statement requirements. Couples should never plan to rely on that power. The Court’s financial agreements guidance explains the requirements and why independent legal advice about the document is important.
Missing assets and incomplete disclosure
A BFA can deliberately address only some financial matters. Leaving a particular asset outside its scope does not automatically invalidate the agreement. The concern is an accidental omission, unclear drafting or material information being withheld when a partner believes the document settles the whole financial relationship.
Start with a complete financial picture: real estate, bank accounts, shares, superannuation, business and trust interests, overseas holdings, loans and other liabilities. Assets do not become irrelevant simply because they are held in one name. The Court’s disclosure guidance covers direct and indirect financial interests, including interests held through companies and trusts.
Since 10 June 2025, the Family Law Act expressly sets out financial disclosure duties for property proceedings, including preparation before a case is filed. Hiding a material financial matter can also provide grounds for setting aside a financial agreement. Your lawyer should check both the information exchanged and whether the agreement’s wording covers the intended settlement.
Choosing between a BFA and consent orders
A BFA is a private statutory financial agreement and is not routinely submitted to a court for approval. Consent orders are orders you jointly ask the Federal Circuit and Family Court of Australia to make. For property orders, the Court must be satisfied that the proposed outcome is just and equitable.
You can usually apply for consent orders without attending a hearing. Independent legal advice is strongly recommended, although consent orders do not have the same mandatory advice certification requirements as BFAs. The Court’s guide to agreed arrangements explains these options. The appropriate choice depends on what you need to resolve and the legal effect you want.
A real case showing the limits of legal advice
In Thorne v Kennedy (2017), the High Court considered financial agreements signed before and after a marriage. Ms Thorne had moved to Australia to marry Mr Kennedy and depended on him financially. Shortly before the wedding, he told her it would not proceed unless she signed an agreement.
Her independent solicitor strongly advised her against signing. Nevertheless, she signed the first agreement four days before the wedding and a substantially similar agreement afterwards. The High Court held that both agreements should be set aside for unconscionable conduct. A majority also found undue influence.
The case shows that receiving legal advice does not automatically cure pressure or exploitation. Both partners need genuine freedom to decide whether to sign. Ms Thorne’s property settlement and maintenance claims remained to be determined after the agreements were set aside.
Practical steps before signing a settlement
1 Gather the financial records
Collect bank statements, tax returns, superannuation balances, loan documents and business records. Identify missing information and obtain valuations where necessary. A clear set of documents helps your lawyer assess the proposal and focus advice on the issues that matter.
2 Check the practical consequences
Work through housing costs, mortgage arrangements, transfer expenses and any tax issues before committing. Confirm whether refinancing is achievable and what happens if it fails. Moneysmart’s separation guidance also recommends making short-term arrangements for bills, accommodation and joint accounts.
For example, keeping the family home may look attractive on paper but leave one person unable to meet repayments and living costs. A workable proposal should identify payment dates, transfer steps and responsibility for expenses while implementation is underway. Those details can matter as much as the percentage split. Discuss them before treating an agreement in principle as a completed settlement.
3 Get advice before signing
Allow time for questions and revisions. Tell your lawyer about pressure, financial control or missing disclosure. Ask for a written explanation of the work and likely costs. A promise that you can obtain advice after signing should not replace the BFA advice process.
4 Keep legal deadlines in view
Property proceedings ordinarily must begin within 12 months after a divorce becomes final, or two years after a de facto relationship breaks down. Negotiations do not automatically extend those periods. If time has expired, obtain advice about whether an exception or permission is available. The Court explains the applicable time limits.
What the research shows about negotiated outcomes
In its 2022 evaluation of legally assisted property mediation, the Australian Institute of Family Studies reported that 81% of 497 matters reaching a mediation conference achieved full or partial agreement. The trial targeted smaller property pools. These results concern that particular program and do not measure BFA success or predict the outcome of every separation.
Legal advice can support a negotiated settlement while identifying risks that might otherwise be missed. CM Lawyers can review your separation arrangements, explain your options and help document the intended outcome.
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