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When a Financial Agreement is not a Financial Agreement

I need to play the devils advocate in order to get a quick answer on this one.

A couple go to mediation and sign an Honourary Financial Agreement that is set out clearly and is worded according to the templates on the Family Law Website. The agreement outlines full indemnity operating both ways and it is sewn up pretty tightly in regards to future ownership and rights of the applicant and respondent.

This agreement is not filed in any court and it has not had a solicitor look over it or a certificate attached to it. The agreement is to do with the property of a separating/divorced couple.

Why is it not binding according to Family Law when any other agreement of it's kind in real estate or financial areas are?

Legislation and Lawyers

Because the Family Law Act (FLA) says that financial agreements are not binding until at least two lawyers have made money from them.

Lawyers need to make money, you know, and the FLA is doing its bit keeping lawyers monied up.

Lawyers have more (influential) friends and more powerful unions and so are more privileged than humble mediators.
You hit the nail on the head there DFL.

My real estate agent get's me and my wife to sign a lease agreement - no lawyers, no court stamp but if we break it we are in deep poo with the tenancy tribunal.

How then can we solve this dilemma for the humble mediator?

I have some ideas but I want to hear yours first.
Get your orders signed in front of a Justice of the Peace or at the court house and submit them to be stamped. You can even do this at your local court house if you're in total agreement.

After they have been read over and accepted by the magistrate s/he will stamp them and the courts will send them back to you in a couple of days or weeks.

Non-stamped agreements really only show intent. I assume this has something to do with the legality, as this would not be a binding legal agreement that you can force someone in court to uphold unless you actually have it filed with the courts.

I think it might also have something to do with magistrates have to look over an agreement and see that it is fair and makes sense. There's much less of a chance of someone being obliged to sign an agreement under duress and having it upheld (think domestic violence situations) where the agreement has to be witnessed by a person who is responsible and the agreement is checked over.

Signing a binding agreement at mediation doesn't give people the opportunity to seek legal advice.

Everyone slap me if I'm wrong.


Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"

Removing identifying info

Are you sure about that?

Clients can just go down to the local court house and just get the Registrar to look at it and stamp it?

A magistrate would tell them to do it properly and get an F11.

The whole thing is the couple don't want to fill out an F11 because what they are agreeing to looks unfair on paper. If they fill out an F11, then it will get sent back by a perfectionist judge and they will be told to do it again.

They are happy though with their Honourary agreement but they need to be told that what? - it doesn't mean a thing if it went to court later and was breached?

Last edit: by Artemis

You guys don't know what an F11 is?

Maybe it is different over there but here we have F11's which are a consent order which people can fill out without going to court.

You have to attach your agreement to it and then it gets stamped by the family court if it is ok. The problem is that if both parties dont split it fairly then, it will be sent back marked "do it again".

If you attach a separate affidavit stating the reason why it looks unfair and stating you dont mind it being that way then it will get passed apparently.

I suppose this is all to avoid coming in contact with a lawyer? That would be a first.

removing identifying material

My observation of various family court systems is that some are more authoritarian than others. FMC and FCoA have their differences and the WA system is different again.

Last edit: by Artemis

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