Several times a year a family lawyer will meet with a client who has entered into a written agreement without first obtaining legal advice. The failure to get legal advice before you sign an agreement can have significant consequences, as any of the following can happen:
You can bargain away too much – family law in British Columbia has changed significantly since the new Family Law Act came into force on March 18, 2013. Even common law couples can have property claims. It is better to fully understand your rights and exposure to risk before you sign.
Your agreement could be invalidated on a technicality – There are important protocols to follow when executing a written family law agreement. For example, your agreement should be signed by both parties in the presence of a witness.
The absence of advice could invalidate your agreement – one of the factors a court will consider on an application to set aside an agreement is whether both parties understood the nature and consequences of the agreement. Where one party did not get independent legal advice, they may later be able to convince a court that they did not understand what they were signing.
You could overlook something important – family law agreements prepared without a lawyer often miss key clauses which would help the agreement operate properly. A family law lawyer will spot where a link in the chain is missing and correct it so that the agreement operates the way you want it to.
You may require more specialized advice – transferring assets and paying support sometimes has significant tax consequences. For example, transferring an RRSP by way of spousal rollover defers the tax, but cashing in the RRSP to fund a settlement will attract a tax bill. A family law lawyer will be able to identify those issues and determine whether you need tax advice.
You could be in a relationship with a power imbalance – power imbalances in relationships can be so pronounced that it impacts one spouse’s ability to negotiate effectively on their own behalf. Sometimes those spouses will make an imprudent settlement just to resolve the matter and stop the arguing with their former spouse. A lawyer will help you take an objective look at the proposed agreement and give you advice about what you are entitled to and what processes are available to you (eg., mediation, litigation) to resolve your family law dispute.
*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.