australia family-law
Can a solicitor challenge a binding financial agreement they don&#39;t agree with?
<p>My ex and I separated last year, with everything between us being very amicable.  I have always been the higher earner.</p>

<p>We both have recently agreed that I would buy out my ex's share of the family home, which is where I still live (I have been paying the mortgage repayments and all other related expenses for the property.  On applying for finance, the bank required a binding financial agreement between us. I would assume that this was to make sure that there are no sudden nasties later on. </p>

<p>Both of us agreed that the only thing we wanted to settle on with our separation was her share of the house, which is half of the value of the house less the remaining mortgage, forgoing a share of the value of my superannuation (for clarification, the agreement equates to a 54%/46% split of total assets, which effectively consist of the house and combined super).  She went to a solicitor to get this drawn up on our behalf, who strenuously advised against such an agreement.  We are both very comfortable with this decision, and said that yes, this is what we want.</p>

<p>The solicitor stated that they would work directly with her instructions, but "have a professional duty to warn you of their concerns".  In the email they sent regarding the agreement, they had this particular paragraph:</p>

<blockquote>
  <p>We would also reserve the right to take our own professional advice as to our efforts on your behalf. </p>
</blockquote>

<p>What does this mean?  Are they implying that they would attempt to challenge our agreement, even though neither of us wants this to happen?  I'm moderately sure that they are simply wanting to protect themselves professionally from any risk, but this really made me nervous.</p>

<p>So my question is, <strong>Can a solicitor (in Australia) challenge a binding separation agreement they don't agree with?</strong>  We are both shaking our heads at the moment, we have an excellent relationship with shared custody of our children and neither of us wants this to happen.</p>

<p>The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. </p>

<p>"We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. </p>

<p>Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that <em>you</em> would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. </p>

<p>(Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right). </p>

<p>The solicitor can't. The Family Court judge can - a binding separation agreement must be lodged with the Family Court. They will review it and, if the terms are significantly different from what the law would give, reject it.</p>

<p>If her solicitor is raising these concerns it's quite likely that the split is not equitable. Check with your own solicitor - you may need to give her more notwithstanding your agreement.</p>
