One Lawyer for Both Spouses: Can One Draft Our Separation Agreement?

You and your spouse are separating on good terms. You agree on the big issues, and paying two lawyers to draft one document feels wasteful. It is natural to ask whether one lawyer can prepare the agreement for both of you.

The short answer is that it is more complicated than it looks. A lawyer owes duties to a client, and the two of you may want different things even if you feel aligned today. This article explains the issue, what Ontario guidance says about independent review, and the arrangement many cooperative couples use instead.

Why sharing a lawyer is a problem

A lawyer's job is to protect the interests of the person they act for. In a separation, your interests and your spouse's interests often pull in opposite directions: a dollar of spousal support one of you receives is a dollar the other pays, and a larger share of property for one is a smaller share for the other.

A lawyer who is asked to act for two people whose interests may conflict faces a real difficulty, because each person needs someone focused on their side. Whether one lawyer can act for both of you depends on the facts, so it is worth confirming with a lawyer before you rely on it.

If one lawyer acts for both of you, it is worth asking who is looking out for your position alone. Neither of you would have someone whose role is to say, for example, that you may be giving up more than you need to.

What Ontario guidance says about independent advice

Ontario.ca says separation agreements let spouses divide property as they choose, that each spouse should have their own lawyer review the agreement, and that it is hard to change later. The word to notice is review: the guidance points toward each person having their own advice before signing.

For support, the guidance says an agreement should be made with full, honest financial disclosure, without pressure, and with an understanding of its terms, or a court can set it aside. It recommends legal advice. If you do not understand what you are giving up, that is the kind of gap that can undermine the agreement later.

Changing a signed agreement is not simple. Only a court can change a support order or domestic contract, and the parties must negotiate a new contract and file it with the court using form 26B. Getting it right the first time is usually cheaper than fixing it.

The usual alternative: one drafts, each gets review

Many cooperative couples do not hire two lawyers to fight. Instead, they agree on terms between themselves or through mediation, and then use a lawyer's role in a limited way. The general pattern looks like this:

• You and your spouse work out the terms yourselves, or with a family mediator. The Divorce Act encourages parties to try negotiation, mediation or collaborative law where appropriate.
• One lawyer is asked to put the agreed terms into writing, with clear understanding about whom that lawyer acts for.
• Each spouse then takes the draft to their own lawyer for independent advice before signing.
• Both spouses sign, with the formalities the law requires for the agreement, which a lawyer can confirm.

This keeps costs down while giving each of you someone who is on your side when you decide whether to sign. It also means any concern, such as a missing item or an unclear clause, is raised before the agreement is final.

What a good agreement depends on

Whatever route you choose, an agreement is only as strong as the information behind it. A financial statement is usually required if a family court case involves support, property or debts. Form 13 is for support-only cases and Form 13.1 is for cases involving property or debts, with or without support. These forms are a useful checklist even when you are not going to court.

What to do next

Before you book anything, be clear with each other about what you are asking a lawyer to do. Then use this list:

• Write down the terms you already agree on and the ones you do not.
• Gather income tax returns, account statements, and details of property and debts.
• Ask any lawyer you approach whom they would be acting for, and whether they can act for both of you.
• Plan for each spouse to get independent advice on the draft before signing.
• Remember that a separation agreement does not replace a divorce. Only a court can grant a divorce.
• If you want FRO to enforce support, ask how to file the agreement with the court using form 26B and register it.

Frequently asked questions