Independent Legal Advice: Is it Necessary for Divorce?

Independent Legal Advice: Is it Necessary for Divorce?/

Independent Legal Advice: Is it Necessary for Divorce?

Diana J. Richmond 30 August 2017

With various divorce processes having the potential to cost a lot of money, it’s no surprise that many divorcing couples seek ways to keep their costs to a minimum. To do this, many chose to prepare and file the required paperwork on their own, without the assistance of a lawyer. These couples are often surprised to find out that they cannot finalize everything they want without retaining a lawyer’s assistance.

The reason for this is that, for couples to legally agree to a division of the property they accumulated during their marriage, each party must obtain independent legal advice. The final splitting of matrimonial property requires a formal agreement signed by both parties.

In Alberta, the Matrimonial Property Act creates a legal requirement that each party have their own lawyer to witness them signing the agreement.

Why is Independent Legal Advice Important?
While this can seem like a burdensome obstacle, the lawyer has an important role to play. The lawyer’s job is to make sure their client understands the agreement, its possible future implications for them and that they are signing of their own free will and not because of external pressures.  These agreements obviously have lasting and long term implications, and it’s important that they are done right. Client’s don’t always need to agree with what the lawyer advises, but they need to understand the full impact of what they are signing.

Is Independent Legal Advice Necessary in All Situations?
Even in scenarios where independent legal advice is not required by law, such as with a pre-nuptial agreements or cohabitation agreements, most lawyers will strongly recommend both parties obtain it anyway. The reason for this is not to create more legal fees, but rather to save the client’s future time, money and conflict should their agreement ever be disputed.

Having independent legal advice works as a strong rebuttal against any arguments that an agreement was improperly executed and should not be binding on the parties signing. Going to court to argue the legal validity of an agreement is costly and can be avoided by doing things right from the start.

Authored by Roger G. Rouault

  • Diana J. Richmond

    Diana J. Richmond

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