What is independent legal advice?
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People signing a family law agreement (such as a cohabitation or separation agreement) are often told by lawyers, mediators, and websites that both parties should get independent legal advice. This fact sheet covers what independent legal advice is and why you should get it before you sign a family law agreement.
Independent legal advice is the advice that each person involved in a legal matter gets from their own lawyer. Because lawyers can only give advice to one person involved in drafting an agreement, you can’t consult a lawyer for legal advice together, and neither of you can just rely on the other person's lawyer. Even if you both agree on a lawyer to act as a mediator, you should each still have your own lawyer review the agreement.
Here are examples of when it’s a good idea for each person to get independent legal advice:
- You and the other person wrote an agreement together and want a lawyer to look at it.
- You and the other person went through mediation without lawyers, and
- the mediator wrote an agreement for you, or
- you wrote your own agreement after the mediation.
- One of you has a lawyer, you and the other person went through mediation, and the mediator wrote an agreement for you.
- One of you has a lawyer, who wrote an agreement for you.
There is no legal requirement that you get independent legal advice. However, if you don’t, the agreement itself might say something like “Party A understands that she is entitled to seek independent legal advice but has chosen not to do so.” This could work against you if you want a judge to reconsider the agreement later.
It’s also in your interest that the other person gets independent legal advice as well as you. You don’t want your ex-partner to be able to say later that they didn’t understand the agreement or were talked into signing it. A judge is more likely to set aside an agreement (replace it with another order) if one or both parties signed it without getting legal advice.
There are other good reasons to get independent legal advice before signing a family law agreement:
- You're signing a contract that has a long-term significant effect on your rights and responsibilities.
Separation and cohabitation agreements that you sign are legally binding contracts. They determine important property, parenting, and support matters that will have a big impact on your future. Get advice to make sure you understand the consequences of the decisions you're making.
Agreements are long and complex.
As well as dealing with how you'll divide property and debt, share parenting, and who'll pay support, agreements often contain many paragraphs to make them more likely to be approved by a judge. If you're using a self-help kit, “standard” clauses will also be included. Make sure you understand what the individual paragraphs mean and how they affect your rights and responsibilities. If you're drafting your own agreement, make sure it includes these types of clauses.
You, the lawyer representing the other person, or the mediator will send the draft agreement to the lawyer to review. Then you’ll make an appointment to meet with the lawyer. The lawyer will ask you questions about your situation to confirm the facts. Some lawyers will ask you to provide financial documents.
The lawyer will discuss with you:
- how the law applies to your situation;
- the trade-offs and compromises, if any, that you made;
- whether the agreement is fair, based on what the results might have been if you'd gone to court instead;
- changes they recommend to make it more fair;
- whether they think any of the language should be changed; and
- changes they recommend to make the agreement better able to stand up to an attempt to set it aside.
Finally, the lawyer will advise you about whether or not you should sign the agreement.
You can decide to sign the agreement, even if the lawyer tells you that you shouldn’t. In this case, the lawyer may or may not agree to witness your signature. They might also write you a letter saying that they advised you not to sign the agreement.
Some agreements will include a clause that says that Person A got independent legal advice from Lawyer A and Party B got independent legal advice from Lawyer B.
Sometimes lawyers include a “Certificate of Independent Legal Advice” as part of the agreement and each person and their lawyer signs a certificate.
Neither of these are required but they're easy ways to make sure proof is available to the judge that you got legal advice.
If you can't find or can't afford to pay a lawyer for independent legal advice (that is, find a lawyer who will go over your agreeement in detail and advise you about whether or not to sign it), it's still worth it to get some legal advice.
This would involve meeting with a lawyer to get some general advice about the law and how it applies in your situation. This advice wouldn't qualify as independent legal advice or a lawyer's official approval, but it's still better than no legal advice at all.
See Who can help to find out where to find a free or low-cost lawyer.
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