Before you sign a family law agreement (for example, a separation agreement), it's best to get independent legal advice. If you've reached an agreement at a mediation, the mediator will encourage you and the other person (the law calls them the other party) to get independent legal advice.
- what is independent legal advice, and
- why is it important?
What is independent legal advice?
Independent legal advice is the advice that each person involved in a legal issue gets from their own lawyer.
Lawyers can only give advice to one of the people involved in the agreement. That means:
- you and the other person both need to talk to a lawyer, but
- you can't both use the same lawyer, and
- one of you can't just do what the other person's lawyer says.
You and the other person both need your own lawyers to look at your agreement before you sign it even if:
- you decide to go to mediation, and
- the mediator is a lawyer.
It's a good idea to get independent legal advice if:
- you and the other person wrote an agreement together and you want a lawyer to look at it before you sign it;
- you and the other person went to mediation without lawyers, and
- the mediator wrote an agreement for you, or
- you wrote your own agreement after the mediation;
- only one of you has a lawyer, you both went to mediation, and the mediator wrote an agreement for you; or
- the other person has a lawyer and that lawyer wrote an agreement for you both.
Why is it important to get independent legal advice?
There's no law that says you have to get independent legal advice before you sign a family law agreement.
If you don't, the agreement you sign might say something like "Party A understands that she is entitled to seek independent legal advice but has chosen not to do so." This means the agreement says that:
- you knew you could speak to a lawyer before you signed the agreement, but
- you decided not to.
This could work against you if you want a judge to change the agreement later.
And if the other person doesn't get independent legal advice, they could say later that they:
- didn't understand the agreement, or
- were talked into signing it.
This could cause problems for you.
There are other good reasons to get independent legal advice before you sign a family law agreement:
- If you sign an agreement, it becomes a legally binding contract. That means you have to do what it says or you could have legal problems.
- You're signing a contract that'll have serious effects on your rights and responsibilities for a long time. Agreements about separating from or living with someone will cover important issues like:
- parenting, and
- Agreements can:
- be long and complex,
- have lots of details about what you're agreeing, and
- have lots of paragraphs to make them more acceptable to a court (this is very likely).
If you're using a step-by-step guide to write an agreement, the agreement will have standard clauses in it. If you need to, get help to understand:
- what the paragraphs all mean, and
- how they affect your rights and responsibilities.
If you're writing your own agreement without using a step-by-step guide, make sure it has standard clauses in it. (See Write your own separation agreement for some ideas about this.)
Get advice to make sure you understand what could happen after you sign the agreement.
If you or the other person don't get legal advice before you sign the agreement, a judge is more likely to set aside your agreement (replace it with a court order) if you go to court to get it changed.
What happens when you get independent legal advice?
You, the other person's lawyer, or the mediator will send the draft (that is, not the final version) agreement to your lawyer so they can read it.
After that, you'll meet with your lawyer so they can talk to you about what's in the agreement. Some lawyers will also ask you to give them financial documents (for example, your tax returns or your pay stubs).
Here are some of the things the lawyer will ask:
- Are the facts in the agreement true?
- If so, how do you know they're true?
- Do you understand the agreement?
- Can you explain what you think the agreement says?
They'll also talk about:
- how the law applies to your situation,
- any compromises you've made and why you've made them,
- whether the agreement is fair, based on what might have happened if you'd gone to court instead,
- any changes they think would make it fairer,
- whether they think any of the language should be changed because it's not clear, and
- changes that would protect you in case the other person tries to get the agreement changed later.
Finally, the lawyer will talk to you about whether or not they think you should sign the agreement.
You don't have to do what the lawyer says. You can decide to sign the agreement, even if they tell you they don't think you should sign it. But if you do this, the lawyer:
- might not agree to witness your signature, or
- might witness your signature but write you a letter saying that they advised you not to sign the agreement.
How can you prove that you got independent legal advice?
There are two easy ways to show a judge that you and the other person got individual legal advice:
- In your agreement, write a few sentences that give the names of:
- you and the other person, and
- the lawyers who gave each of you independent advice; or
- Ask both your lawyers to include a Certificate of Independent Legal Advice in the agreement. Each person and their lawyer signs this.
To find out more about agreements, see:
- Making an agreement after you separate,
- Making an agreement when you live together, and
- Who can help you reach an agreement?
What if you can't afford a lawyer to give you independent legal advice?
If you can't afford to pay a lawyer for independent legal advice, it's still worth paying to meet with a lawyer to:
- get some general advice about the law, and
- find out how it applies in your situation.
This won't count as getting independent legal advice, but it's better than getting no legal advice at all.
And you might be able to get some free or low-cost legal help.