Why Do I Need Independent Legal Advice for My Family Law Agreement?
By Jenna Lalani, Vancouver Family and Estate Planning Lawyer
Cohabitation agreement, pre-nuptial agreement, parenting agreement, separation agreement – there are many different types of agreements in family law and each one is a contract which you are legally bound to follow and carry out the terms. The importance of receiving legal advice prior to signing is paramount. Each party must understand the complexities of the agreement and their rights or obligations when signing. Seeking independent legal advice (ILA) is confirmation that a party is entering into the agreement freely and not under duress. ILA also confirms that the agreement is not misleading or significantly unfair, and that there’s been significant disclosure and the parties are satisfied with the disclosure before signing.
Retaining a lawyer to draft an agreement is the first big step to ensure that a professional is drafting the terms in a comprehensive and effective manner. The lawyer that is retained to draft the agreement would only represent one party and have their best interests in mind as it would be a conflict for both parties to rely on the same lawyer to draft the agreement and sign without getting legal advice specifically tailored to their individual needs. A party would want to ensure that they have someone in their corner to ensure that the agreement is not one-sided and that it is fair.
Can one party have a lawyer draft it and the other party sign without ILA?
Every lawyer will be advising for the need for the other party to review the agreement with an independent lawyer before signing. The lawyer will sign off on a Certificate of Legal Advice acknowledging that they provided legal advice which is an important and integral part of your agreement. Without this, there could be an attempt to overturn an agreement on the basis that the party did not know what they were signing as they did not receive legal advice. To prevent this from happening, both parties should have signed Certificates of Legal Advice attached to their agreement.
If a party is adamant about refusing to receive legal advice on an agreement, they can waive their right to receiving it. While this is highly discouraged, it would be important to replace the Certificate of Legal Advice with a Waiver of Legal Advice. Having this signed document by the person refusing to receive legal advice will give the other party more protection as the courts would be less willing to overturn an agreement in this circumstance. Signing a waiver shows that the party was advised to seek legal advice and declined to do so.
Without a signed Waiver of Legal Advice and having just the physical signature of a party on the agreement shows no confirmation that they understood what they were signing. Perhaps they could have been misrepresented or unclear about what the terms meant. Receiving legal advice confirms that they are aware and understanding what it is they are signing.
Section 93(3) and Section 164 of the Family Law Act outlines the criteria where the Courts may set aside all or part of a family law agreement if the parties do not seek legal advice. Do you really want to have an agreement revisited and potentially altered in any way after signing?
The lawyers at Crossroads Law can assist with drafting your family law agreements as we work hard to protect your rights. When finalizing an agreement, we ensure that everything is complete with the necessary accompanying certificates or waiver.
The lawyers at Crossroads Law can also assist with providing you with the legal advice prior to signing. If an agreement is drafted by another firm, we can provide ILA to a party to ensure that they understand what they are signing and that their interests are adequately protected. Call us today for your free 20-minute consultation to get started.