We have recently come across situations where parties have attempted to divide their property without appropriate legal advice. An agreement prepared by the parties and subsequently signed and witnessed by friends, is not a valid agreement.
What this means that an invalid agreement does not prevent future claims. In a recent case, the husband and wife divided their property between themselves. They prepared their own agreement, and had their signatures witnessed by a friend. Several months later, the wife believed she should have received more from the property ‘pool’ and made a successful claim against the husband for a greater share of the property.
For an agreement to be valid, the law provides that:
- The agreement must be in writing;
- Each party to the agreement must have independent legal advice before signing the agreement;
- The signature to each party must be witnessed by a lawyer;
- The lawyer who witnesses the signature of a party must certify that before signing the agreement the lawyer explained to the party the effect and implications of the agreement.
The drive behind these statutory requirements is to ensure that the parties are fully informed as to what they are gaining and/or losing in by agreeing to a property division; that the settlement is in keeping with the law; and all claims have been properly considered, for example, spousal maintenance or economic disparity claims.