What is Independent Legal Advice?
Independent legal advice (ILA) is advice provided specifically to you in order to protect your individual rights. Both parties typically cannot be represented by the same lawyer, as it may be considered a conflict of interest.
Why is it Important?
When signing a Marriage Contract or Separation Agreement, etc. you may be advised to seek ILA. By obtaining ILA, you will not only be protecting yourself now, but also in the future by entering into any Contract or Agreement with full knowledge of your rights and responsibilities.
The lawyer that you choose will have the responsibility to explain the content of the Contract or Agreement, they will advise you of anything which may be missing or out of place in the Contract or Agreement and they will provide any advice on whether it is a fair and reasonable Contract or Agreement.
It is not uncommon that a lawyer will advise you to seek further information prior to signing the Contract or Agreement. This could include things such as completing a Financial Statement, in order for you to enter into the Contract or Agreement with a full understanding of the matter.
Your lawyer may also point out anything you may have not considered, such as a claim for spousal support, the splitting of a pension or a proper equalization of Net Family Properties.
How Does ILA Help Both Parties?
By both parties having legal advice provided, it strengthens the Contract or Agreement, making it less likely that it can be overturned if the matter proceeds to Court.
There can be situations where one party is satisfied with the terms of a Contract or Agreement until their personal situation changes. If this happens, they may choose to challenge the Contract or Agreement. By not having ILA, a party may claim that they did not understand their rights or responsibilities under the Contract or Agreement. In this situation, a Judge may consider this as a reason to overturn the entire Contract or Agreement.
The stronger the Contract or Agreement is, the more the other party will have to prove there is a material change in circumstances which would warrant the Contract or Agreement to be changed.
What if I want to Sign Without ILA?
Although it is recommended that you seek ILA, you are within your rights to decline ILA and sign a Contact or Agreement without representation.
Also, your lawyer may decline to act as ILA for you if they feel as though the Contact or Agreement is unjust or bias towards one party. Remember, it is your lawyer’s job to ensure that you are protected. In addition, declining to act as ILA may also protect your lawyer. Your lawyer may also decide to have you sign a waiver acknowledging that they have pointed out any flaws in the Contract or Agreement, but you wanted to proceed against their advice.
If you are in need of ILA or have further questions on your family law needs, please contact:
JOANNE LAGOUDIS
RINALDI SILVA LLP
Suite 301
720 Guelph Line
Burlington, Ontario
L6J 1J1
T: 289-635-1522
F: 289-635-1586
This article is not legal advice. It is a general guide to the subject matter for your information. Please contact our office and one of our experienced lawyers can assist you with your legal needs.
