The Importance Of Independent Legal Advice for your Separation Agreement
Independent legal advice, also more commonly referred to as ILA, is an important consideration for all parties in any type of legal action. It is legal advice that is obtained by a lawyer that is in no way associated with any of the other parties to the legal agreement or the contract.
Understanding why Independent Legal Advice is so essential when entering into any type of legal contract, including a divorce, separation, marriage, or cohabitation agreement, helps to clarify the issue and prevent common mistakes that can occur that may limit your ability to have full information on what is in your best interest.
Who can provide Independent Legal Advice?
In most cases, a Certificate of Independent Legal Advice is required for parties entering into a Separation agreement, Marriage Contract, Prenuptial Agreement or Cohabitation Agreement. A licensed Family Lawyer in the Ontario providing this service can provide this Certificate of Legal Advice. For family law matters, working with a family lawyer provides specific information to the divorce, marriage, separation, or other types of family law cases.
The family lawyer selected to provide the Independent Legal Advice must be independent and not have a conflict of interest with the other party. In a family case, this means that even if the separating or divorcing couple agrees to use one lawyer for the case, a separate Lawyer for each party must provide the ILA.
The Lawyer providing the ILA will ask about the people (parties) involved in the case. If she or he has a conflict, he or she will not provide the ILA but may be able to recommend another lawyer to provide the service.
Why do I need Independent Legal Advice?
ILA is required to demonstrate that parties to the legal action understand the implications of accepting or entering into the contract or agreement. This prevents individuals from being misled by the other party as to the terms of the agreement, or how signing the agreement can impact the individual.
It is also essential in ensuring the party has fully read the document and understands all the legal language. This can be difficult for most people, and having the time to speak to an independent Family Lawyer and fully understand all clauses, terms, and details of the agreement clears up confusion and prevents people from being pushed, coerced, or manipulated into signing something they do not fully understand.
Without ILA, people could possibly enter into an agreement and, at some later date, report that they did not understand the terms of the agreement. They could also report they were forced or coerced into signing the agreement or misinformed as to the terms of the separation agreement or marriage contract. With all parties to an agreement required to obtain an ILA, these issues can be eliminated for the most part, ensuring that the agreement will be binding and can be relied on throughout the term specified.
Are There Specific Conditions When Independent Legal Advice is required?
Lawyers in Ontario are bound by specific rules of professional conduct and ethics, and these are designed to provide protection for their clients as well as to identify clear areas where conflicts of interest may be present.
There are specific conditions where a family lawyer will require both parties to the divorce, separation, or family law matter to obtain a Certificate of Independent Legal Advice.
The most common of these is in the case of a joint retainer. In this case, the couple to the divorce may choose to use one lawyer to reduce the costs of the divorce or separation. By requiring a Certificate of Independent Legal Advice, the Lawyer working with the couple, as well as the two people involved, can be assured that there is no confusion or misunderstanding about the agreement. This ensures that the settlement has not been developed to favour or provide an advantage of one party over the other.
This is particularly important if one party is more experienced in the law or has some type of educational or power advantage over the other. An example of this would be a divorce that is based on physical or mental abuse. By receiving independent legal advice, the vulnerable party has time and space to ask questions and fully understand the agreement without pressure, coercion, or fear.
The other issue that may require a Certificate of ILA is in the case of an error by the Lawyer. If this error could be damaging to one party to the agreement, this individual should obtain Independent Legal Advice to understand the potential repercussions of proceeding with the agreement.
What Should I Expect?
Hiring a Lawyer to provide ILA is a straightforward process. Most family law firms in Ontario provide the service, and it is typically a single appointment that is completed before anything is signed or agreed to in the separation, divorce, or other family law matter.
Depending on the complexity of the paperwork, the amount of material for the Family Lawyer to review, and the details of the specifics of the divorce or separation, the meeting may be scheduled for one to four hours. Most divorce reviews are approximately 1 to 2 hours in length for the review through to the witnessing of the signing of the agreement.
The various law firms may have slightly different processes, but it includes the review of the documentation and agreement by the lawyer, the Lawyer meeting with the client to explain the details and answer questions, feedback from the Lawyer to the client on any issues, and finally the Lawyer can arrange to draft the Certificate of Independent Legal Advice and witness the signing of the agreement.
The client should bring all documentation to support any information contained in the agreement, including information on assets, liabilities, incomes, children, or other issues related to the agreement.
It is also helpful to be sure to review the separation agreement, in full, before talking to the lawyer providing the Independent Legal Advice. It can be very beneficial to jot down a list of questions or any concerns you have about the terms, language, or the implications of various clauses or points within the agreement.
It is very common for people to struggle in working through the more complex legal jargon and terms. Your Independent Legal Advice Lawyer understands this, and she or he takes the time to ensure that clients are comfortable with the language, the specific legal terms, and with the short and long term implications of accepting the contract or agreement.
At the end of the meeting, or at a later meeting, if the Independent Legal Advice Lawyer needs time to review complex documentation, he or she will provide a Certificate of Independent Legal Advice. This is a specific document that provides a record of the review of the documents/agreement by the lawyer providing Independent Legal Advice, the review of the documentation by the client, and the confirmation the client understand the document/agreement and its implications.
What Happens if a Party to the Agreement Refuses to Get a Certificate of Independent Legal Advice?
Despite the best efforts of family lawyers to explain the potential dangers of not obtaining Independent Legal Advice, some people may choose not to proceed. In these situations, the lawyer will require the non-compliant party to sign a document stating they have elected not to seek Independent Legal Advice.
In most provinces and territories, those with financial challenges in hiring a lawyer for Independent Legal Advice can work through Legal Aid to obtain the necessary consultation and certificate.