AGREEMENTS - INDEPENDANT LEGAL ADVICE

Why Is Independent Legal Advice ("ILA") Recommended?
There is not legal requirement to obtain independent legal advice before signing a domestic contract, such as a Marriage Contract or a Separation Agreement. However, an agreement will be much more vulnerable to challenge later by a party who becomes unhappy by the agreement.

 

A party may claim they were coerced into signing; did not understand what they were signing; where not told the truth about important facts: or that the agreement is extremely unfair.  The party can ask a court to invalidate the agreement and allow them to proceed with a claim for relief from the court.

 

If a lawyer gives independent legal advice, he is certifying that he has taken steps to ensure his/her party is making an informed and voluntary agreement.

 

What is Expected of the Lawyer Giving Independent Legal Advice?
There are onerous requirements on a lawyer giving independent legal advice. If they fail to do these tasks properly, they can be liable to their client for any loss by the client.

 

The lawyer must ensure:

• The client has capacity to make the decision and is not being unreasonably pressured or influenced.

• The client understands the law affecting the case and the relief dealt with (and not dealt with) in the agreement.

• The client fully understands the agreement and it consequences.

• The terms of agreement put into effect the intent of the client.

• The terms of the agreement are not unconscionable and are lawful.

• Necessary financial disclosure has been given by the parties, if the agreement involves support or property.

• All important facts affecting the agreement have been disclosed.

 

When to Involve a Lawyer?
Consult a lawyer as soon as possible.  Before you start negotiating, and perhaps during negotiations, you need legal advice - What does the law say about these issues? What are my alternatives? What are the likely consequences in the future? What evidence do you need to make a informed decision.

 

The lawyer can also advice you about the options for dispute resolution and what the process for finalizing agreements. You will need to bring in certain documents before independent legal advice given.  This can avoid delay and complications.

 

For ILA on a Marriage Contract, the lawyer should be involved long before the wedding.  Many lawyers are reluctant to start working on a Marriage Contract within two months of a wedding.  There is a risk that the impending wedding will result in undue pressure to sign an agreement or a lack of proper preparation.

 

How Much Will It Cost?
A responsible lawyer would spend not be less than three hours (for the simple agreement).  But the actual cost will depend on:

• what claims need to be dealt with

• how complicated the agreement and the facts are

• how reasonable the agreement is

• whether necessary disclosure has been given and how complicated the party's finances are

• any urgency to complete the document

• the need to negotiate changes in wording or substantive terms