Independent Legal Advice (ILA)
Independent Legal Advice (ILA) in family law matters refers to the legal advice a party receives from their own lawyer. This is a fairly standard process before a separation agreement is signed.
Why you need Independent Legal Advice
It is very important to obtain independent legal advice before signing a separation agreement.
A separation agreement is a legally binding contract. It includes rights, obligations and at times releases from certain obligations. Separation agreements usually cover important issues such as property, support and parenting. Therefore, it is important to fully understand the legal implications arising from the agreement.
In some cases, a separation agreement can be overturned by a judge. This can occur if a party entered into the agreement without having obtained legal advice from a lawyer. In such cases a party can argue that they did not understand what they were signing or that they were under undue pressure when signing it without a lawyer.
What the Lawyer Does
Here is a summary of the steps usually undertaken by a lawyer when giving independent legal advice.
- A lawyer that provides advice will first review the agreement in detail.
- After reviewing the agreement, the lawyer will confirm if the facts set out in the agreement are accurate and whether the party understands what is contained in the agreement.
- The lawyer will then discuss the relevant legal issues that arise in the party’s case, including the party’s legal rights and obligations in family law.
- If a party is waiving a right or agreeing to do something that is above and beyond their legal obligation, the lawyer will ask more questions to understand why.
- The lawyer will then provide an opinion on whether the agreement is fair and any recommended changes that should be made to the agreement.
- The lawyer will advise the party on whether or not they should sign.
- The lawyer will then sign a Certificate of Independent Legal Advice. This certificate confirms that advice was given and is attached at the end of the separation agreement. There are some situations where a lawyer may not sign. These situations are usually in cases where there is a concern that a party is under undue pressure or duress.
Why you cannot use the same lawyer as your spouse
Some parties mistakenly assume their former spouse can also meet with the same lawyer to obtain independent legal advice. For legal advice to be independent, each party must have their own legal representation. Lawyers are unable to give independent legal advice to both parties because this would put them in a conflict of interest.
Other Articles to Read
Divorce and Separation
Family Justice Services
Child Custody and Access
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments