Independent Legal Advice
Independent Legal Advice
Why Independent Legal Advice Matters
Independent legal advice (“ILA”) relates to the private conversations you should have with your own personally retained lawyer about the nature and effect of entering into certain transactions or contracts.
Examples of when ILA must be offered to you include:
- When an unrepresented person is involved in a legal matter such as the negotiation of a family law or domestic contract
- When a mediator prepares a contract outlining the terms of the domestic contract reached for the partners or spouses to sign
- When a conflict of interest arises, a lawyer has a duty to avoid the conflict by ceasing to act for a client. However, a client may, with informed consent as a result of receiving ILA, allow the lawyer to continue to act for them
Domestic contracts include prenuptial agreements, paternity agreements, cohabitation agreements, marriage contracts, or separation agreements.
ILA is also commonly used when a person seeks to secure a debt against a jointly owned property, in cases where the debt would have no benefit to the property co-owner. Consider the situation where a person secures against their home a new car loan for the sole use of the other spouse. If the spouse defaults in the repayment of the loan, the homeowner without receiving any benefit relating to the car risks losing their interest in the property. Fortunately spouses cannot encumber title to their matrimonial home without the prior written consent of the other spouse.
Context and Disclosure
To ensure the lawyer providing the independent legal advice is able to fully understand the context in which the family law contract was written, you will disclose the circumstances leading up to its creation. What you believe is in the contract should be explored, and in turn the lawyer explains through a line-by-line review of the contact what the written terms actually mean.
Your rights and obligations under the document will also be explained. Rights are responsibilities owed to you by the other party to the contract. A right to receive spousal support is an example. Obligations are actions you are required to do or refrain from doing for the party to the agreement. An obligation to vacate the matrimonial home by a certain date is an example of an obligation.
Understanding the Independent Legal Advice
During the receiving of independent legal advice, you will be asked if he or she has been influenced, coerced in any way or feels under duress to sign the agreement. You will also be directly asked if signing the agreement will be a voluntary act free from any threats or inducements from another person.
When the lawyer has completed the detailed review of the agreement with you, with all questions answered fully, and is satisfied that you understand the nature of the contract and its consequences once it is signed, the lawyer will sign a Certificate of Independent Legal Advice. The Certificate will be attached to all original copies of the contract.
Providing independent legal advice takes at minimum an hour with you. You must provide personal photo-identification and a copy of the most recent draft of the agreement for the lawyer to review and keep in her file. All discussion will be carefully documented by the lawyer.
Professional fees are charged for this service, which means Lorisa requires you to sign a retainer agreement and provide a preliminary deposit before providing legal advice.