It’s amazing how many times we will hear from one or both parties to a relationship that has ended where they want to jointly see us to help them finalise their property matters.
Usually this will be because they have had an “amicable as possible” separation and think engaging one lawyer to draw up the necessary paperwork will be the quickest, easiest and cheapest way to go.
Unfortunately such an approach can lead to disappointment when we need to say our professional rules prevent us from acting for both parties in a property settlement — and for good reasons.
The role of a family lawyer in a property settlement is not to just draw up the agreement as suggested as one of the parties. It also involves providing advice on whether the agreement is fair for you and ensuring you understand not only the obligations of the agreement but also any risks associated with it.
For example, a couple without legal advice might decide that a good settlement would be one where he keeps all the house and she keeps all the super. To understand whether that is a fair settlement you need to be able to compare it to what would be the likely outcome if a court decided who gets what. To make sure you are getting what you think is the settlement you need to know the way it is drafted is correct.
All of this would be impossible to do with an even hand if the lawyer was acting for both parties.
However, this does not mean that you can’t reach an agreement yourselves and have it implemented easily. If you have reached an agreement the best way to go about implementing it is to agree that one of you will engage a lawyer to draw up the necessary paperwork as well as providing the necessary advice. From there, the proposed agreement is then provided to the other party with a strong recommendation that they seek their own independent advice.
In my experience, if the matter is handled in this way, it will usually mean that the other party is happy with the agreement drafted. Having received the advice the necessary paperwork is signed and the agreement implemented.
So, if your relationship has ended on relatively good terms it is worth sitting down and seeing if you can try and nut out an agreement between yourselves.
The best way to go though is for you both to obtain some independent advice from experienced family lawyers, then with that advice informing you, meet with each other and see if you can reach an agreement. If you can, you will save not only time and money, you will usually end up with better relations in the future.