Independent legal advice is required in many family law matters. It ensures that the interests of all the parties are protected. Independent legal advice is advice from a lawyer who is not acting for, and is not connected to, any other person in the dispute. For example, if the wife has a lawyer, that lawyer may provide independent legal advice to the wife. However, they cannot provide independent legal advice to the husband. Independent legal advice informs an unrepresented party about the nature and consequences of his or her decisions.
Independent legal advice is most commonly sought prior to entering into some agreements, such as marriage or separation agreements, especially in situations when one of the parties is unrepresented. Agreements entered into without independent legal advice are prone to being overturned by the court. It is important to remember that to be valid, all family law agreements have to be negotiated based on full financial disclosure by both parties. A lawyer providing independent legal advice on family law agreements must be aware of the financial situations of both parties. This awareness is crucial to make the advice meaningful.
According to the Family Law Act, independent legal advice is mandatory for family arbitrations. Any award from an arbitration must involve both sides receiving independent legal advice. Without this, the award will not be enforceable in court.
A lawyer acting as a mediator and preparing a draft contract for consideration by the parties in mediation should advise them to seek independent legal advice before signing it.
A lawyer providing Independent Legal Advice needs to perform a detailed review of the parties’ financial disclosure, and carefully read the Draft Agreement. The lawyer also needs to interview the client to find out their priorities, objectives, and expectations. The lawyer must explain the meaning of any agreement the client is about to enter into. In most situations, it is necessary to provide the client with a written document explaining the meaning of the Agreement.
Providing Independent Legal Advice is crucial and time consuming and involves more than just "rubber stamping" as clients might expect. The fee for providing Independent Legal Advice is based on actual time spent which is seldom less than 5 hours.
In some situations, the lawyer providing Independent Legal Advice becomes involved in negotiating changes to the Draft Agreement. This results in additional time being spent.