de facto binding financial agreement

Managing Your Legal Team

At some point in time you may need to appoint an Accredited Family Lawyer. Building an effective relationship with your Family Lawyer is paramount. If you are negotiating a de facto binding financial agreement or trying to better understand your de facto rights to property of the relationship, you will need to establish a relationship with your Family Lawyer that is based on trust. It will serve you well to have some understanding of the type of information your Lawyer will require, the legal processes involved in your matter and the potential costs involved should the matter proceed to Court.

Your Accredited Family Lawyers Responsibilities:

de facto binding financial agreementWhile not a science, the practice of law is not an art either. Your Family Lawyer is responsible for doing a number of things for you. These include:

Your Family Lawyer should have an overarching plan for your matter. Obviously this will depend on the type of matter you are running & the variables that may be encountered. If you are negotiating a de facto binding financial agreement your timeline will be completely different than if you were to run a de facto relationship property rights matter for example.

This plan should include best & worst case scenarios and a rough timeline factoring in variables and include:

  • Identification of immediate requests such as spousal maintenance support, and demands for financial documents. These types of requests should all be made in line with the case timeline your Family Lawyer has created for your matter.
  • Your Family Lawyer will not be able to tell you definitively how the matter will proceed as there may be too many variables such as the other sides perception of their de facto property rights which may be in opposition to your view of their de facto property rights. Your Family Lawyer should present you with a general idea of how he/she thinks your matter will proceed & alert you to all important issues.

We have received feedback from members of this site to the effect that many sought second opinions on their matters. The most common bone of contention was that their case had no direction, there was no light at the end of the legal tunnel and that it seemed like their side was always responding to their ex partners action with no overriding case strategy of their own.

One member who was involved in a de facto relationship property rights matter told us he eventually terminated his Family Lawyer after four years of lengthy delays, with no formal decision on de facto rights to property, child support payments, access to the children or termination of their de facto binding financial agreement agreed. Eventually it came to light that these delays were caused by his Family Lawyer & her exhausting work schedule which left her little time to do her job. The key message is that you must be aware & comfortable with the direction of your matter.

Here are a few more things your lawyer should be doing:

  • One of the first things your Family Lawyer will do is write to the other side & request disclosure of all financial documents in order to assess what assets there are to divide up. You can help with this process by listing all assets you are aware of. If your ex partner is likely to try & hide or dispose of assets then alert your Family Lawyer to this.
  • If you & your ex partner had a cohabitation agreement or de facto binding financial agreement drawn up between you, then provide this to your Family Lawyer.
  • If you or your ex partner has superannuation or benefits, your Family Lawyer will need a copy of the plan documents and account statements for the term of your relationship.
  • Very quickly your family Lawyer should alert you to the need to call any experts to give evidence in your case. Experts can include people like, business appraiser’s or a forensic accountant. Even if you hope the matter never goes to Court, engaging these professionals early & ensuring they are across your matter from the outset can give you an advantage later on.
  • Through your Family Lawyer, ensure the other side is notified that you are open to hearing all reasonable settlement proposals and keen to negotiate. Make sure this door is always open even if you believe your ex partner has no de facto relationship property rights.
  • Your Family Lawyer should alert you to letters and phone calls and keep you informed of all communication with the other side. You should also be notified of important calls, especially those concerning settlement proposals. If the Court hands down any decisions regarding your case, your lawyer should notify you at once.
 Your calls should returned by your Family Lawyer within 24 hours unless there’s a reason why that’s not possible. To be fair, you should only call your Family Lawyer when you have important information to convey or a question to ask. Write down your questions and save them for a few days (unless urgent) this way you can ask several questions at once. Most Family Lawyers charge out in increments of 15 minutes, which will quickly add up when their charge out hourly rate is $750 per hour.
  • Your Family Lawyer is not your councilor, or your friend. Nor are they there to act as your psychiatrist. They are there to provide you with legal advice & help you navigate the end of your relationship.
  • If your case looks like it will proceed to court, your Family Lawyer, with your input, will want to interview potential witnesses for your case. You need should identify the type of information your Family Lawyer requires as evidence & present your Family Lawyer with a list of people who may be able to give it. Your Family Lawyer will then start to prepare affidavit evidence form each witness.
  • In many de facto rights to property matters a Barrister will be required. A Barrister is someone who appears on your behalf at Court & argues key points on your behalf. Your Family Lawyer will provide you with a list of Barristers. You should meet with each of them with your Family Lawyer. If you have time go & watch your short list of Barristers in Court. Appointing a Barrister early in your matter is important, as they will be fully aware of your matter.
  • If your matter goes to court, your Family Lawyer should fully prepare you. If possible, you should visit the courthouse and even the courtroom in advance and spend time watching & listening to a case. Your Family Lawyer should review the line of questioning they intend to run in Court and alert you about what to expect during cross-examination.
  • Your Family Lawyer should give you some sense of whether the law supports your position. No Family Lawyer will guarantee you a victory, but a knowledgeable lawyer should be able to tell you whether there is a basis for your position and what is likely to happen if the case runs in Court.
  • Sending you monthly accounts detailing all costs & hours expensed. If your Family Lawyer is running your matter on account, which means you will settle their legal account from the settlement they negotiate on your behalf. Request monthly statements summarizing all costs charged to your account. You must stay across your legal costs as they can balloon quickly.

If your de facto rights to property matter ends with a defeat in Court, or if there are any defeats along the way (i.e. lose a subpoena application), your Family Lawyer should be able to provide you with sound advice about whether to appeal or seek reconsideration.

Your Responsibilities As The Client:

  • If you are negotiating a de facto binding financial agreement or have been presented with a de facto binding financial agreement by your partner, you should seek legal advice from an Accredited Family Lawyer. Taking professional legal advice about the de facto binding financial agreement may prevent other problems further into the relationship. Taking the right legal advice early on can help you understand both your de facto relationship property rights and your partner’s de facto rights to property.
  • Once you appoint a Family Lawyer you need to put your faith in that person’s skills & experience. There is no point second guessing your choice. If you have doubts then you must act on them.
  • Your Family Lawyer will not judge you so don’t avoid certain topics because you are embarrassed. The majority of Family Lawyers have heard it all before. Your Family Lawyer is there to help not judge. Tell the truth at all times. Your lawyer must be aware in advance of any issues that could arise. Many cases turn on the credit of the applicant or respondent in these matters. Don’t allow your credit to be challenged by allowing your legal team to be blindsided by something in your past.
  • No matter what you may have done, tell your Family Lawyer about it & be honest. The only way your Family Lawyer can protect you is by being aware of all of the facts pertaining to your case.
  • Recognize the boundaries of this new relationship with your Family Lawyer. Your Family Lawyer is not your counselor, so, make sure you recognize these boundaries. Your Family Lawyer is not your friend, they are not helping you deal with the emotional fall out caused by the end of your relationship. They are there to steward you through a legal process and get you an outcome. Try to remember this.

A Few Family Law Principles To Keep In Mind:

Family law can be stressful, even in matters where the decision to end the de facto relationship was mutual. The emotional stress associated with the end of a relationship is often aggravated by the financial implications of separation. This is often still the case when there is a de facto binding financial agreement in place.

Children and the breakdown of a family unit can make the situation even more complicated. In Australia, Family Law is based on two key principles:

  • no-fault divorce/separation
  • when the issues revolve around parenting of children, the Courts will always make decisions in the best interests of the child.

It will serve you well to be aware of these things as they will navigate the Court processes and understand how the Courts in Australia approach de facto relationship breakdowns, child matters and surrounding issues.

Any relationship breakdown hurts emotionally. You may need support from family & friends. If you find you are not coping with the breakdown of your relationship you may need to get professional help. Don’t’ feel a sense of shame or embarrassment by doing this. It is often a positive thing to do & can be a great catalyst for personal change.

At the same time, you should do your best to approach any negotiations that relate to your separation, child custody and property settlement practically, rather than emotionally. Your objective is to achieve the best possible outcome for you and your family, especially your children. In short, it is not the time to be vindictive or bitter. It is definitely not the time for revenge. The best strategy is to focus on the future and building a new life.

It’s Time To Get Organized:

In any legal matter, it helps if you are organized. Ideally, you should handle as much of the administrative work as you can. This includes collating documents, making multiple photocopies of documents your Family Lawyer needs and preparing chronologies. Why?

Firstly, it will help your matter to move forward as quickly and smoothly as possible. Second, it will save you money in legal fees because your lawyer won’t have to charge you for the kind of administrative work you could have done yourself.

  • Start a legal correspondence folder & keep all of your communication with your legal team in one place. Run a timer when you are on the phone & track your contact hours. Make sure you compare this to the corresponding charges for that month.
  • Track the next steps your lawyer lists & follow up as to their completion. Remember this is your legal case & your matter will be one of a number your Family Lawyer is handling. You need to stay focused & ensure you are across your own case.
  • There is no formal dress code for parties appearing in court. However, it is important to dress in a way that is respectful. There is no need to wear a suit, but you can wear one if you feel comfortable doing so. Otherwise, it is fine to wear smart casual clothing.

If you have any queries in relation to a de facto relationship breakdown or would like need help selecting a qualified family law professional please contact the Family Law Association in the State you reside.

We have a suite of resources on the site that can help you manage your legal team & build your knowledge about de facto relationship property rights & how to negotiate a de facto binding financial agreement. Scroll through the resources below or click through to the resources tab and filter based on your areas of interest. If you want to access our resources you can join the site as a member or simply purchase the individual resources you require.

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