A solicitor's certificate is a signed statement by a legal practitioner confirming that independent legal advice has been provided to a party before they sign a Binding Financial Agreement. This certificate is a mandatory requirement under the Family Law Act 1975, and without it, the BFA will not be binding. Reid+Alexander Lawyers provide comprehensive advice and certification services to ensure your agreement meets all legislative requirements.
What Is a Solicitor's Certificate?
Under sections 90G and 90UJ of the Family Law Act 1975, each party to a Binding Financial Agreement must have a signed statement from their legal practitioner. This statement certifies that the lawyer provided advice to their client about:
- The effect of the agreement on the rights of that party
- The advantages and disadvantages, at the time the advice was provided, of making the agreement
The solicitor's certificate must be attached to or accompany the BFA. It serves as documentary proof that the independent legal advice requirement has been satisfied, and it is one of the first things a court will examine if the validity of a BFA is ever challenged.
Requirements for a Valid Certificate
The Family Law Act sets out specific requirements for the solicitor's certificate. To be valid, the certificate must:
- Be signed by an Australian legal practitioner who holds a current practising certificate
- Confirm that advice was given about the effect of the agreement on the party's rights
- Confirm that advice was given about the advantages and disadvantages of making the agreement
- Be provided by a lawyer who is independent of the other party's legal representative
- Be provided before or at the time the agreement is signed by the party
A solicitor's certificate that is deficient in form or substance can render an entire Binding Financial Agreement unenforceable. Courts have set aside BFAs where the certificate did not adequately reflect the scope of advice provided, or where advice was given after the agreement was signed.
The Solicitor's Obligations
Providing a solicitor's certificate carries significant professional responsibility. When our lawyers at Reid+Alexander issue a certificate, we ensure that:
- The advice is genuine and comprehensive: We do not treat certification as a formality. Our lawyers take the time to review the agreement thoroughly and provide substantive advice tailored to the client's specific circumstances.
- The client understands the agreement: We confirm that the client has had the opportunity to ask questions and that they understand the practical effect of the agreement on their financial position.
- The advice is properly documented: We maintain detailed file notes of the advice provided, which can be relied upon if the validity of the BFA is later questioned.
- The certificate is correctly executed: We ensure the certificate complies with the prescribed form and content requirements under the Family Law Act.
Common Issues with Solicitor's Certificates
Courts have identified several recurring issues that can undermine the validity of a solicitor's certificate and, by extension, the BFA itself:
- Certificates that use generic or template wording without reference to the specific agreement
- Advice provided in a cursory manner without adequate time for the client to consider the terms
- Certificates signed after the agreement has already been executed by the party
- Failure by the advising solicitor to identify significant disadvantages or unfair provisions in the agreement
These issues highlight why it is essential to engage a family lawyer who approaches the certification process with the seriousness and diligence it requires.
"The solicitor's certificate is the gateway to enforceability. Without a properly issued certificate, even the most carefully drafted BFA may be rendered worthless."
If you need a solicitor's certificate for a Binding Financial Agreement, or wish to discuss the validity of an existing certificate, contact Reid+Alexander Lawyers to speak with one of our family law team members.