Why you need independent legal advice for a separation agreement

We often have clients arrive at our office with settlement agreements in various stages of completion. “We’re in agreement on everything,” they say, “We agree on where the kids will stay, access, support, spousal support and we each already have what we want out of our property.” The client (quite rightly) feels that they’ve done the heavy lifting by coming to a lawyer with an agreement in hand, so they are sometimes a little confused when we tell them that both spouses will need to get independent legal advice regarding the agreement. Why can’t the lawyer just finalize this deal that each spouse has clearly agreed to? Why do the spouses need “advice” when they’re in agreement already?

First, there’s the formal requirement for it. In Alberta, the Matrimonial Property Act requires that any binding agreement between spouses regarding the matrimonial property contains a written acknowledgement by both spouses that they each understand the nature and effect of the agreement, that they understand the claims they each have and each may be giving up under the agreement and that they each signed voluntarily. This acknowledgement must be signed in front of a lawyer.

Second, there’s the substantive requirements, which are pretty clearly laid out by the requirements of an acknowledgement in the Matrimonial Property Act but apply universally:

  1. You need to understand the terms of the agreement you’re signing. You need to know what each provision means for you and your spouse. You need to understand your rights and obligations (and those of your spouse) as written in the agreement.
  2. You need to understand what is available to you (within the limits of the law) and what you’re getting and giving up. You don’t have to take everything you’re entitled to. You can agree to whatever you wish but it needs to be an informed decision.
  3. You need to be willing to sign the agreement. An agreement that is coerced or forced is no agreement at all.

Your lawyer can provide you with the information you need to ensure you understand how your agreement works and what your options are under the law. Moreover, having independent legal advice can ensure that you aren’t forced into signing an agreement you don’t understand or don’t accept.

Finally, there’s the follow-on protection of independent legal advice: it stops either party from complaining about the agreement later. When each spouse has had independent legal advice, the agreement is binding. Neither spouse can re-open the settlement agreement months or years after the fact because they have changed their mind and decided they no longer like the terms. Independent legal advice ensures that your agreement sticks.

With each party getting independent legal advice, you ensure that your agreement is understood, is fair and was entered into voluntarily.

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