What is Independent Legal Advice?
Independent legal advice is a requirement for spouses who enter into a Minutes of Settlement respecting the division of family property. Essentially, both spouses must meet with their own lawyer, who will advise them of their legal rights.
In Alberta, separating spouses do not need to attend Court to divide their family property. If they are able to work it out between themselves, Section 37 of the Family Property Act allows them to enter into an family property agreement. However, for this agreement to be binding it must conform to the “formal requirements” outlined in Section 38.
These formal requirements include that the person entering into the agreement has acknowledged—in writing and apart from their spouse—that they are:
1 – Aware of the “nature and the effect” of the agreement;
2 – They are aware of their possible future legal claims to the property, and will give them up to give effect to the agreement;
3 – The agreement is made “freely and voluntarily” by the person.
Importantly, these acknowledgements must be made before a lawyer other than the lawyer acting for the other party. Basically, for a Separation Agreement—or Prenuptial Agreement—relating to family property to be enforceable, both spouses will need to consult with a different lawyer and receive independent legal advice.
Do I Need ILA?
If you are entering into an agreement, whether it be a Prenuptial Agreement or a Separation Agreement, then yes you must have independent legal advice in order for the agreement to be enforceable in court. Without independent legal advice, your spouse may commence or continue litigation against you respecting the family property.
Not only will properly executed ILA allow spouses to rely on their agreements, but it is important for spouses to know their legal rights before signing an agreement in the first place. A lawyer will often notice problems with a proposed agreement which may open you up to future liability, or cost you money down the road to fix. In addition to this, proper ILA may result in you receiving a bigger settlement than you would have received otherwise.
Contact a Family Lawyer for Independent Legal Advice
We hope you found this legal information helpful. Feel free to call us at Morrison LLP at 587-758-1099 if you have any questions about the need for independent legal advice—the first 30 minutes are free.
Although we are based in Edmonton, our family & divorce lawyers—and practicing mediators—are proud to serve much of northern Alberta, including the following communities:
- Edmonton & Area – Sherwood Park, Beaumont, Leduc, Fort Saskatchewan, St. Albert, Spruce Grove, Stony Plain.
- North – Athabasca, Morinville, Westlock, Gibbons, Barrhead, Redwater, Peace River, High Level, Fort McMurray.
- West – Drayton Valley, Edson, Hinton, Whitecourt, Devon.
- South – Camrose, Wetaskiwin, Millet, Calmar.
- East – Vegreville, St. Paul, Cold Lake, Bonnyville, Vermillion, Wainwright, Tofield.