In Family Law matters, BFA’s are an important tool for couples who want to set out how their property, finances, and spousal maintenance will be handled if their relationship or marriage breaks down, or once a relationship or marriage has ended.
You can read more about the differences between these types of Agreements and the strict legal requirements here.
In family law matters, BFA’s are an important tool for couples who want to set out how their property, finances, and spousal maintenance will be handled if their relationship or marriage breaks down, or once a relationship or marriage has ended. You can read more about the differences between these types of Agreements and the strict legal requirements here: https://delaneyrobertsfamilylawyers.com.au/understanding-the-difference-between-financial-agreements-bfas-termination-agreements-and-prenuptial-agreements/
What is a Certificate of Independence?
A Certificate of Independence is a formal statement, usually annexed to the BFA, in which a Lawyer certifies that they have provided independent legal advice to their client regarding the effect of the agreement on the client’s rights, and the advantages and disadvantages of entering into the agreement.
This certificate is a statutory safeguard designed to ensure that parties enter into BFAs with full knowledge and understanding of their legal position.
We offer a Fixed Fee for a Certificate of Independent Legal Advice for a Binding Financial Agreement after separation.
The Lawyer’s Role
A lawyer’s role in obtaining a Certificate of Independence is essential and involves several important steps.
Here’s what it looks like in practice:
1. Providing Independent Legal Advice
The lawyer must give advice explaining:
- How the BFA affects their client’s rights.
- The advantages and disadvantages to the party of entering into the BFA at the time of the agreement.
The advice should be tailored to the client’s situation and delivered in plain language so they can fully understand what they are signing.
In order to provide this advice the Lawyer needs to review the Binding Financial Agreement and any supporting documentation used to draft the BFA including financial disclosure.
2. Ensuring True Independence
Each party must have their own lawyer.
No lawyer can act for both parties, and any potential conflicts of interest must be avoided.
Having an independent lawyer also ensures there is no pressure or influence affecting the client and is therefore crucial for the certificate to be valid.
3. Reviewing and Explaining the Agreement
Lawyers carefully go through the agreement, explaining key points for example how assets and property are divided, spousal maintenance provisions, future claims, and how the agreement could be changed or ended.
They also highlight any risks or unfair terms, so the client is fully aware of what they are agreeing to.
4. Certifying the Advice
Once the client has received and understood the advice, the lawyer signs the Certificate of Independence.
This certificate is attached to the BFA, and a copy is given to the other party or their lawyer, confirming that proper independent advice has been provided.
5.Assessing Capacity and Voluntariness
Finally, the lawyer must be satisfied that the client fully understands the agreement and is signing it voluntarily.
If there are concerns about duress, undue influence, or the client’s ability to understand the terms, the lawyer must address these issues or may decide not to provide the certificate.
What happens if there isn’t a Certificate of Independence, or it isn’t signed properly?
A Financial Agreement can be set aside if either party did not receive independent legal advice. This means that even if both parties signed the agreement, it may not be enforceable if the Certificate of Independence is not signed by a Lawyer.
This is why the Certificate of Independence is so important. It provides written confirmation that the lawyer has explained the effect of the agreement, discussed its advantages and disadvantages, and that the advice was given independently.
Ultimately, getting proper legal advice before signing a BFA is more than just a legal requirement. It is an essential step to make sure the agreement is valid and enforceable.
