Why do we each need independent legal advice before signing?

What independent legal advice means

Independent legal advice is advice from a lawyer who acts only for you, has no connection to your spouse or the mediator, and has reviewed the agreement with you before you sign. The lawyer explains what each clause does, what the law would likely give you instead, what you are giving up and what you are getting, and whether anything in the disclosure or the process should worry you.

The mediator cannot do this, even if the mediator is a lawyer, because the mediator is neutral. Your spouse's lawyer cannot do it, because that lawyer acts for your spouse. The word 'independent' is the point. It is advice, not a rubber stamp; a lawyer can and sometimes should tell you not to sign.

Why the law makes it matter

The Family Law Act does not list legal advice among the formal requirements for a domestic contract. Instead it does something stronger. Section 56(4) says a court may set aside a domestic contract or any provision in it if a party did not understand the nature or consequences of the contract, and that applies despite anything the contract says. Independent legal advice is how a spouse shows, years later, that they did understand.

For family arbitration the law goes further: section 59.6 makes an arbitration award enforceable only if each party received independent legal advice before signing the arbitration agreement, and the lawyer must complete a certificate. Mediation is not that strict, but the reasoning behind the rule is the same.

What happens at the appointment

Bring the memorandum or draft agreement, your financial statement and your spouse's, and the disclosure you exchanged. We read the agreement with you clause by clause, compare it to what the law would likely provide on parenting, support and property, and ask about anything in the process that concerned you: pressure, fear, rushed decisions, documents that never arrived.

If the agreement is sound and you understood it, we say so and sign the certificate. If something should change, we say that too, and the change goes back through the mediator or between the lawyers. Most appointments take about an hour; a complex property settlement or a business takes longer. We offer this as a flat-fee service with a published price.

The certificate of independent legal advice

The certificate is a short document signed by your lawyer and attached to the agreement. It states that the lawyer explained the nature and consequences of the agreement to you, that you appeared to understand, and that you signed voluntarily. It is not confirmation that the deal is fair; it is a record that you were advised.

Both lawyers' certificates are usually attached to the executed agreement and kept with it. If the agreement is ever challenged under section 56(4), the certificates and the lawyer's notes are the first things a court looks at. Keep your copy with the agreement and the disclosure it was based on.

If your spouse refuses to get advice

You cannot force your spouse to see a lawyer, and an agreement signed by a spouse who declined advice is not automatically invalid. But it is easier to attack. If your spouse will not get advice, we usually recommend that the agreement record the refusal in writing, that the spouse be given a real opportunity and time to obtain advice, and that the disclosure be thorough and attached.

Some agreements include a signed acknowledgement that advice was offered and declined. That helps. It does not fully replace a certificate, and if the refusing spouse later claims not to have understood, the other spouse carries the burden of showing otherwise. Where the deal is lopsided, insist on advice or do not sign.