Deciding to take the next step in your relationship or deciding to move on are significant steps that involve significant contemplation. Whether you are diving into cohabitation or navigating the uncharted waters of separation, a domestic agreement, such as a cohabitation or separation agreement, can provide clarity and security for both parties. 

Although looking ahead at a new chapter can be overwhelming, it is important not to overlook crucial steps during the process, such as obtaining independent legal advice for your family law agreement. This is important for even the most amicable couples and will help ensure that your agreement is upheld in the event of a dispute. 

This blog will explain why having your own lawyer on your side, even when you’re on the same side as your partner, is essential for protecting your rights and ensuring a fair outcome.

Why Are Family Law Agreements Important?

Family law agreements (sometimes referred to as “spousal agreements” or  “adult interdependent partner support agreements”) can involve proactive agreements, such as cohabitation agreements and marriage contracts, or maybe a reaction to resolving issues following a breakdown of the relationship through a separation agreement. 

Regardless of the type of agreement entered into, it can provide a roadmap for the relationship and address issues upon the dissolution of the relationship to avoid future disputes and misunderstandings between the parties. A family law agreement can proactively address issues relating to finances, property division, and other matters that are important to the parties. 

What is Independent Legal Advice?

Independent legal advice (also referred to as “ILA”) may be required in various situations, however, it is particularly important for those involved in family law matters, whether they are amicable or contentious. When it comes to a cohabitation or separation agreement, typically, one party will retain a lawyer to draft the agreement and advise them on it, while the other party will obtain independent legal advice on the agreement from a different lawyer, apart from your spouse, prior to signing the agreement. 

After independent legal advice has been provided, the lawyer will typically provide a certificate of independent legal advice that will be included as part of the agreement.  

The Importance of Obtaining Independent Legal Advice 

Obtaining independent legal advice before signing any domestic agreement is paramount in protecting yourself and ensuring its validity. 

When you obtain independent legal advice, a lawyer will conduct an objective review of the proposed (draft) agreement and can highlight provisions of concern or matters that may be one-sided. They will likely ask questions regarding your circumstances during the review to ensure that you understand the nature and consequences of the agreement, as well as your rights and obligations under it. During the appointment, the lawyer will verify that you are signing the agreement freely and are not being pressured into signing the agreement under duress or undue influence. Further, independent legal advice confirms that the agreement is not misleading or significantly unfair. It also affirms that there has been proper and satisfactory disclosure between the parties before the agreement was signed.

What Happens After I Receive Independent Legal Advice?

In some cases, it may be possible to execute the agreement immediately after receiving independent legal advice. However, in many instances, independent legal advice may uncover matters requiring additional information, or amendments may be required to ensure the agreement is fair for both parties. The agreement should only be signed once both parties and their lawyers are satisfied with its contents. However, a party may choose to sign the agreement without the proposed amendments. 

After both parties have executed the agreement, they will each receive an original copy for their records, which should be kept in a safe place. 

If there is a situation in which the lawyer providing independent legal advice notes that you lack the mental capacity to enter into the agreement, are signing the agreement under unduly pressure, or a lack of disclosure has been identified, they may refuse to execute the agreement with you. 

Consequences if Independent Legal Advice is Not Obtained

A party may seek to challenge a family law agreement for many reasons. Alberta courts take independent legal advice seriously; therefore, they will carefully assess family law agreements in light of each party’s circumstances. If independent legal advice is not obtained, a family law agreement may not be enforceable in court, resulting in further issues between the parties. 

Although discouraged, if a party refuses to obtain independent legal advice on a family law agreement or chooses to waive their right to receive it, they must sign a document acknowledging this to replace the certificate of independent legal advice. This document confirms that the person is aware of their right to independent legal advice and has declined to obtain it, and provides the other party with protection as a court may be less willing to overturn an agreement in the circumstances. Without a signed document, a party’s signature on the agreement does not confirm that they understood what they were signing.

Contact the Alberta Family Law Lawyers at Getz Collins and Associates for Advice on Domestic Agreements

At Getz Collins and Associates, our experienced team of family and divorce lawyers offers comprehensive family law services to help spouses proactively address and resolve issues. We offer our clients flexible, stand-alone services, including reviewing family law agreements, to ensure you understand an agreement’s potential impacts and consequences before signing it. We also help clients prepare and revise cohabitation and separation agreements.

With convenient locations in Calgary and Strathmore, Getz Collins and Associates proudly represent clients across Alberta in communities such as Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar, and surrounding areas. To speak with a member of our team regarding your family law matter, reach out to us online or call us at (587) 391-5600.